Section 15-22-54 Period of Probation; Termination of Probation; Violation of Terms of Probation; Sanctions.

(a) The period of probation or suspension of execution of sentence shall be determined by the court and may not be waived by the defendant. The period of probation or suspension may be continued, extended, or terminated as determined by the court. Except as provided in Section 32-5A-191, relating to ignition interlock requirements, the maximum probation period of a defendant guilty of a misdemeanor may not exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years, except as provided in Section 13A-8-2.1. When the conditions of probation or suspension of sentence are fulfilled, the court, by an order duly entered on its minutes, shall discharge the defendant. (b) The court granting probation, upon the recommendation of the officer supervising the probationer, may terminate all authority and supervision over the probationer prior to the declared date of completion of probation upon showing a continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of the probation. At least every two years, and after providing notice to the district attorney, the court shall review the probationer’s suitability for discharge from probation supervision if the probationer has satisfied all financial obligations owed to the court, including restitution, and has not had his or her supervision revoked. (c) At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and have the probationer arrested for violating any of the conditions of probation or suspension of sentence, and the court shall hold a violation hearing. No probationer shall be held in jail awaiting the violation hearing for longer than 20 business days, unless new criminal charges are pending. If the hearing is not held within the specified time, the sheriff shall release the probation violator unless there are other pending criminal charges. A judge may issue a bond to a probationer for release from custody. (d) Except as provided in Chapter 15 of Title 12, any probation officer or law enforcement officer with power of arrest, when requested by the probation officer, may arrest a probationer without a warrant if the probationer violates the conditions of probation in the presence of the arresting officer. The arresting officer, or his or her agency, as soon as practicable, but no later than 24 hours following the arrest, shall notify the Board of Pardons and Paroles of the probationer’s arrest. The probationer may be detained in the county jail or other appropriate place of detention until the probationer is brought before the court. The probation officer shall report the arrest and detention to the court and submit in writing a report showing in what manner the probationer has violated probation. (e) After conducting a violation hearing and finding sufficient evidence to support a probation violation, the court may take any of the following actions: (1)a. If the underlying offense was a violent offense as defined in Section 12-25-32 and a Class A felony, a sex offense pursuant to Section 15-20A-5, possession of a firearm by a person forbidden from firearm possession pursuant to Section 13A-11-72, or aggravated theft by deception pursuant to Section 13A-8-2.1, the court shall revoke probation and require the probationer to serve the balance of the term for which he or she was originally sentenced, or any portion thereof, in a state prison facility, calculated from the date of his or her rearrest as a delinquent probationer. b. If the probation violation was for absconding, possessing a firearm, being arrested or convicted of a new offense, or failing to successfully complete a court supervised, evidence-based treatment program, as defined in Section 12-25-32, a court ordered faith-based program, or any other court ordered rehabilitative program, the court may revoke probation and require the probationer to serve the balance of the term for which he or she was originally sentenced, or any portion thereof, in a state prison facility, calculated from the date of his or her rearrest as a delinquent probationer. c. For all other probationers, the court may impose a period of confinement of no more than 45 consecutive days to be served in a residential transition center established pursuant to Section 15-22-30.1 or a consenting county jail designated for this purpose as provided in Section 14-1-23. The probationer shall be held in the county jail of the county in which the violation occurred while awaiting the revocation hearing. The Department of Corrections shall reimburse the state mileage rate to the county, as determined by the state Comptroller, for any probationer charged with, or sanctioned or revoked for, a probation violation and who is transferred to or from a Department of Corrections facility or to or from a consenting county jail by the county. (2) Upon completion of the confinement period, the remaining probation period or suspension of sentence shall automatically continue upon the defendant’s release from confinement. The court may not revoke probation unless the defendant has previously received a total of three periods of confinement pursuant to this subsection. For purposes of revocation, the court may take judicial notice of the three total periods of confinement under this subsection. A defendant shall only receive three total periods of confinement pursuant to this subsection. The maximum 45-day term of confinement ordered pursuant to this subsection for a felony shall be reduced by any time served in custody prior to the imposition of the period of confinement and shall be credited to the suspended sentence. If the time remaining on the imposed sentence is 45 days or less, the term of confinement may not exceed the remainder of the defendant’s sentence. (3) The total time spent in confinement under this subsection may not exceed the term of the defendant’s original sentence. (4) Confinement shall be immediate. The court shall ensure that the circuit clerk receives the order revoking probation within five business days. The circuit clerk shall ensure that the Department of Corrections, a county jail, a residential transition center, or a consenting county jail receives necessary transcripts for imposing a period of confinement within five business days of its receipt of the court’s order. (5) If a probation violator with a serious health condition is presented to a county jail, excluding a consenting county jail designated for this purpose as provided in Section 14-1-23, for any period of confinement, if the confinement of the probation violator would create a security risk to the county jail, or if the county jail is near, at, or over capacity, the sheriff may refuse to admit the probation violator. If, while in custody of the county jail, a probation violator develops a serious health condition, if a confinement of the probation violator creates a security risk to the county jail, or if the county jail reaches near, at, or over capacity, the sheriff may release the probation violator upon notification to the probation officer and to the court who has jurisdiction over the probation violator. A sheriff and his or her employees shall be immune from liability for exercising discretion pursuant to Section 36-1-12 in refusing to admit a probation violator into the jail or releasing a probation violator from jail pursuant to this subdivision. (f) In lieu of subsections (c) through (e), when a probationer violates his or her probation terms and conditions imposed by the court, his or her probation officer, after an administrative review and approval by the probation officer’s supervisor, may impose any of the following sanctions: (1) Mandatory behavioral treatment. (2) Mandatory substance abuse treatment. (3) GPS monitoring. (4) Any other treatment as determined by the court or supervising officer. (5) A short period of confinement in the county jail of the county in which the violation occurred. Periods of confinement under this subdivision may not exceed six days per month during any three separate months during the period of probation. The six days per month confinement period may only be imposed as two-day or three-day consecutive periods at any single time. The total periods of confinement may not exceed nine total days. (g)(1) Prior to imposing a sanction pursuant to subsection (f), the probationer must first be presented with a written violation report setting forth the alleged probation violations and supporting evidence. The probationer shall be provided a written notice that he or she has the right to all of the following: a. Have a hearing before the court on the alleged violation or violations in person or by electronic means. If a hearing is requested, no probationer shall be held beyond 20 business days of the request. Only requesting probationers posing a threat to public safety or a flight risk shall be arrested while awaiting a hearing. b. Present relevant witnesses and documentary evidence. c. Retain and have counsel at the hearing and that counsel shall be appointed if the probationer is indigent. d. Confront and cross examine any adverse witnesses. (2) The probationer may waive the right to have a hearing. Upon the signing of a waiver of these rights by the probationer and the supervising probation officer, with approval of the probation officer’s supervisor, the probationer may be treated, monitored, or confined for the period recommended in the violation report and designated on the waiver. The probationer may not request a review if he or she has signed a written waiver of rights as provided in this subsection. (h) The board shall adopt guidelines and procedures to implement the requirements of this section, which shall include the requirement of a supervisor’s approval prior to a supervising probation officer’s exercise of the delegation of authority authorized by subsection (f).