Dismiss Petition to Revoke

7/30/2019 Dismiss Petition to Revoke

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HENTOFFLAWO

FFICE

25560W.

Highway85,

Suite26

Buckeye,Arizona

85326

(602)257-1776

HENTOFF LAW OFFICE25560 W. Highway 85, Suite 26Phoenix, Arizona 85326

(602) 257-1776

WWW.HENTOFFLAW.COM

Nicholas S. Hentoff - 012492

Attorney for Defendant

IN THE MARICOPA COUNTY SUPERIOR COURT

IN AND FOR THE STATE OF ARIZONA

STATE OF ARIZONA,

Plaintiff,

v.

MICHAEL ROBERT SOUTAR,

Defendant.

Case No.: CR9809153

MOTION TO DISMISS PETITION TO

REVOKE PROBATION AND TO

TERMINATE PROBATION

Michael Robert Soutar, by and through undersigned counsel, respectfully requests that

this Court dismiss the pending Petition to Revoke Probation and Terminate Probation on the

grounds that the two year delay in holding a probation revocation hearing violates Mr. Soutars

rights to Due Process under both the Arizona State and United State Constitutions. This Motion

is supported by the accompanying Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I.FACTS

On June 30th

, 1999, the Honorable Peter Reinstein sentenced Mr. Soutar to a period of

probation and imprisonment on Count 1, Attempted Forgery, a Class Five Felony and to Count

2, Theft, a Class Three Felony. Mr. Soutar was sentenced to a term of 1.5 years in the Arizona


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HENTOFFLAWO

FFICE

2415E.

Camelback,

Suite700

Phoenix,

Arizona

85016

(602)257-1776

Department of Corrections on Count 1 and to a period of probation for five years on Count 2,

commencing on Mr. Soutars release from prison on Count 1. Restitution in the amount of

$46, 661.84 was ordered on both counts. See Exhibit A, Minute Entry Order Dated July 3, 1999;

Exhibit B, Memo to the Court dated March 26th

, 2002; and Minute Entry order dated April 4th

2004.

On June 12th Judge James Paddish signed an Order modifying the terms of Mr. Soutars

probation to allow him to participate in Interstate Compact Program and be supervised on

probation in New Mexico. See Exhibit D. On September 13th 2004 a Petition to Revoke

Probation was filed alleging that Mr. Soutar violated the terms of his probation by committing a

new offense in New Mexico, among other violations of the terms and conditions of his

probation. See Exhibit E. On September 15th, 2004, a Bench Warrant was issued by the Clerk of

the Court.

Upon information and belief, Mr. Soutar was arrested on this warrant in Boston,

Massachusetts, shortly after it was issued. However, Arizona declined to initiate extradition

proceedings, instead placing a detainer on Mr. Soutar after he was transported back to New

Mexico to face pending criminal charges. Mr. Soutar, who would have been eligible for a

release bond on the New Mexico charges but for the Arizona warrant, has been incarcerated on

Arizonas detainer hold for most of the past two years.

II.

LAW

A person whose probation is subject to revocation is protected by the Due Process

Clauses of the Fifth and Fourteenth Amendments and is entitled to a revocation hearing. Gagnon

v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). The hearing

must be held within a reasonable time. See id.; Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct


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HENTOFFLAWO

FFICE

2415E.

Camelback,

Suite700

Phoenix,

Arizona

85016

(602)257-1776

2593, 2602, 33 L.Ed.2d 484 (1972).

Federal courts have held that revocation of probation after unreasonable delay is an abuse

of discretion. See, e.g., United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983) (three-

year delay unreasonable); United States v. Tyler, 605 F.2d 851 (5th Cir.1979) (delay of one year

in seeking revocation for misdemeanor charges deprived probationer of right to due process).

See also U.S. v. Hunt, 990 F.2d 1263 (9th Cir. 1993); C.P.M. v. D'Ilio, 916 F.Supp. 415

(D.N.J.,1996). The purpose of providing a timely hearing is to hold the proceeding while

information is fresh and sources are available. Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602.

Arizona courts have also consistently recognized that Gagnon and Morrissey protect the

defendant's right to due process in the context of probation revocation proceedings. See State v.

Flemming, 184 Ariz. 110, 907 P.2d 496 (1995); State v. Adler, 189 Ariz. 280, 942 P.2d 439

(Ariz. 1997);State v. Flowers, 159 Ariz. 469, 471, 768 P.2d. 210, 203 (App. 1989); State v.

Reidhead, 152 Ariz. 231, 234, 731 P.2d. 126, 129 (App. 1986); State v. Gray, 115 Ariz. 150,

152, 564 P.2d. 101, 103 (1977). In State v. Flemming, the Arizona Supreme Court held that in

evaluating the reasonableness of the delay, courts have focused on three factors: length of the

delay, reasons for the delay, and prejudice to the defendant. Fleming, 907 P.2d at 501. This

approach was reaffirmed by the Arizona Supreme Court in State v. Adler, 189 Ariz. 280, 942

P.2d 439 (Ariz.1997).

Courts in other states have recognized that a trial court may lose the power to conduct a

probation violation hearing if it does not proceed within a reasonable time. See, e.g., People v.

Williams, 10 Ill.App. 3d. 428, 294 N.E.2d. 61,63 (1973). In State v. Rome, 392 So.2d. 407, 410

(La. 1980), the Supreme Court of Louisiana held that "[w]here the state can execute a warrant

timely but makes no attempt to do so, the running of the probationary period is not suspended,

and a subsequent untimely revocation will be declared illegal. " State v. Rome, 392 So.2d. 407,


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HENTOFFLAWO

FFICE

2415E.

Camelback,

Suite700

Phoenix,

Arizona

85016

(602)257-1776

410 (La. 1980).

In addition, Rule 27.10 (B) (1) of the Arizona Rules of Criminal Procedure provides for

the revocation of probation in abstentia.1 During the two years since the Petition to Revoke was

filed in this case, Maricopa County made absolutely no effort to either initiate extradition

proceedings based on its detainer hold or to conduct the revocation hearing in abstentia,

preferring instead to let Mr. Soutar rot in a New Mexico jail as his due process rights slipped

away with each passing day. Mr. Soutar has now lost the opportunity to have the time on his

New Mexico charges run concurrent with the time he may receive upon revocation of probation

in his Arizona case. Mr. Soutar has therefore been prejudiced by the inexcusable delay in

holding his probation revocation hearing and the Petition should therefore be dismissed and his

probation in this case terminated.

RSPECTFULLY SUBMITTED September 21st, 2006

Nicholas S. HentoffAttorney for Mr. Soutar

Copy of the foregoing hand deliveredon September 21st 2006 to:

Maricopa County Attorneys Office301 W. Jefferson StreetPhoenix Arizona 85003

1If the supervising probation officer has reasonable cause to believe that a probationer has violated a writtencondition or regulation of probation, the probation officer or the prosecutor of the court of jurisdiction in which theprobationer is being supervised may petition the court to revoke probation in absentia.

Documents

Dismiss Petition to Revoke