Probation Extension for Nonpayment of Restitution Extends All Terms of Probation


5/4/16  When a defendant is on felony probation, if the prosecutor or probation officer believes the defendant has violated a term of probation they can commence a violation of probation proceeding. If the defendant is found by the court to be in violation it can extend the probation term by up to 5 years.

In State v. John Alden Turner, Court of Appeals, Division 1, No. 1 CA-CR 15-0477, the defendant was on felony probation, one of the conditions of which was to pay restitution to the victim in the case. Prior to the expiration of the term of probation the probation officer filed a violation of probation petition alleging the defendant had not paid the restitution. The defendant admitted he had not paid the restitution and so the court found him in violation and, pursuant to 28 A.R.S. § 925.C, reinstated the probation and extended it for another 5 years. Six months later, and after what would have been the end of probation had it not been extended, the probation officer filed a second violation of probation petition. The court found the defendant to be in violation of other terms of probation unrelated to the payment of restitution, revoked his probation and sentenced the defendant to prison.

On appeal the defendant argued then when probation is extended through 28 A.R.S. § 925.C, the only obligation of probation which is extended is to pay the restitution, therefore, at the time of the second violation proceeding he was no longer subject to the other terms of the original sentence of probation, and could not have his sentence of probation revoked for a time during which he was not on probation. If the defendant was correct the court would have been without authority to revoke the probation and sentence him to prison for violations unrelated to payment of restitution. However, the court of appeals disagreed, and affirmed the prison sentence. In doing so the court quoted 28 A.R.S. § 925.C, which states:

“When the court has required, as a condition of probation, that the defendant make restitution for any economic loss related to the defendant’s offense and that condition has not been satisfied, the court at any time before the termination or expiration of probation may extend the period within the following limits:

1. For a felony, not more than five years.
2. For a misdemeanor, not more than two years.”

The court of appeals said a plain reading of the statute does not limit the terms of probation which may be extended under 28 A.R.S. § 925.C to only the payment of restitution, and so all terms of probation are extended as well. The court held that since the terms which the defendant had been found in violation of where properly extended, his probation could be revoked for violation of the other terms and there was no basis to reverse the prison sentence.

The case can be found here:

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1%20CA-CR%2015-0477.pdf

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