Lead Opinion
Upon a plea of guilty to first-offense driving while intoxicated, the defendant was placed on probation for 1 year beginning October 3, 1989. The defendant was ordered to abstain from the use of alcohоlic beverages, to obtain
On September 28, 1990, the Douglas County Court issued a warrant for the defendant’s arrest for violation of probation. On October 1, 1990, an affidavit alleging the defendant’s viоlation of probation was filed in the county court. The return on the warrant states that on October 3, 1990, notice of the warrant was mailed to the defendant’s address by regular U.S. mail without return receipt requested.
Apparently, the defendant did not learn of the existence of the warrant until April 27, 1991, when he turned himself in. A hearing on the violation of probation was held on June 13, 1991. Although the defendant stipulated that he had consumed alcohol while on probation and had failed to attend 45 Alcoholics Anonymous meetings, he contended the county court should dismiss the charge because the State made no diligent effort to serve proper notice on him.
The county court found the defendant guilty of violation of probation, and he was sentenced to jail for 30 days and ordered to pay a fine of $500. The defendant’s driver’s license was suspended for 180 days from the date of discharge from jail or payment of the fine.
The defendant appealed to the district court, where the judgment was affirmed.
The defendant then appealed to the Nebraska Court of Appeals and assigned as error the district court’s affirmance of his conviction. He argued that the district court erred in affirming the judgment because the Statе had failed to execute and serve the warrant in a timely fashion, which deprived the defendant of a prompt hearing as required by Neb. Rev. Stat. § 29-2267 (Reissue 1989), and because prosecution of the violаtion was barred by Neb. Rev. Stat. § 29-1207 (Reissue 1989).
The Court of Appeals found:
The warrant was mailed to Windels at his last known address October 3, 1990. However, Windels did not turn himself in until April 27,1991. As we construe the facts in favor of the State, it can be inferred that Windels knew*32 about the warrant and that he caused the delay. Under the facts presented here, the procedure to revoke Windels’ probation commenced prior to the end of his probationary pеriod. After Windels turned himself in on April 27, a hearing was afforded him in a prompt and reasonable manner on June 13,1991.
State v. Windels,
As to the defendant’s argument regarding a speedy trial, the Court of Appeals found that to be without mеrit “because the speedy trial provisions do not apply to parole or probation proceedings,” id., and the defendant had “failed to allege any specific prejudice which rеsulted from any delay in holding his hearing,” id. at 287.
The defendant contends that the Court of Appeals erred in finding that the defendant was properly served with a warrant on the violation of probation and that he was аfforded a prompt hearing on the alleged violation of probation.
The defendant correctly points out that there is no evidence in the record to support a finding that the defendant had actual notice of the warrant prior to April 27, 1991, and that there is no evidence that the State made a diligent effort to serve a warrant on the defendant. Service of a warrant by regular mail will nоt support an inference that the accused had notice of a command to appear in court. See State v. Richter,
The defendant argues that since § 29-2267 requires the State to afford a probationer a prompt hearing upon the filing of a motion or information to revoke probation, the State’s lack of diligence in serving the warrant forfeits the State’s right to revoke probation after the probationary term has ended.
Nebraska law authorizes the filing of motions or informations to revoke probation during the term of probation and within a reasonable time thereafter. State v. Ladehoff, 229
In this case, the defendant related a lapse in sobriety in April 1990 to his probation officer and continued reporting regularly to his probation officer through his last scheduled appointment on September 19, 1990, 14 days before his probation was to terminate. The motion to revoke the defendant’s probation was not filed until the day before the end of the defendant’s probationary term, and the defendant was not personally served with the warrant on the alleged violation of probation until 6 months and 26 days after the filing of the motion to revoke probation. There is nothing in the record to indicate that the State made any effort, other than mailing the warrant to the defendant’s home address, to serve the defendant with the warrant.
Other jurisdictions which pеrmit revocation proceedings after the term of probation has ended still require the prosecuting authority to demonstrate diligent effort in serving the warrant for. violation of probation whenevеr there is a significant lapse of time between the end of the probationary term and the due process hearing afforded on violation of probation. See, State v. Martens,
In Langston v. State, supra, the Texas Court of Criminal Appeals held that authorities had not exercised necessary diligence in arresting the defendant 8 months after a motion to revoke his probation had been filed and Vh months after the expiration of his probationary term when the defendant’s address was known and there was no indication that the defendant was hiding.
In Commonwealth v. Smith, supra, the Superior Court of Pennsylvania held that the State’s failure to explain the months’ delay between thе defendant’s conviction for another
The Maryland Court of Appeals has held that “in order to comply with the dictates of due process, the State must bring about the revocation hearing with due diligence or reasonable promptness so as tо avoid prejudice to the defendant.” State v. Berry,
at a minimum, the State should make reasonable efforts to initiate the proceedings and to locate and serve the defendant with process so as to bring him to trial promptly. On the other hand, we think the trial court should consider the availability of the defendant to receive such process and the extent to which he has made his presence known in the community in which he lives. While what action is timely, diligent or reasonable will differ on a case by case basis, we do believe that inactivity and inattention by the State for an inordinate period of time, where thе defendant has been available and has not concealed his whereabouts, may be sufficient to persuade a court that fundamental fairness should prevent the State from proceeding with the revocation hearing.
In this case, the record does not show that the defendant was unavailable or concealed his whereabouts, and the State made no explanation concеrning its delay in prosecuting the defendant for his probation violation. In Commonwealth v. Ruff,
Since the State failed to diligently pursue the revocation of the defendant’s probation and has failed to explаin its delay in prosecuting the defendant on that charge, it was unreasonable to revoke his probation nearly 9 months after the expiration of the defendant’s term of probation.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the county court with directions to dismiss the prosecution.
Reversed and remanded with directions to dismiss.
Dissenting Opinion
dissenting.
The cases are divided on the effect of a delay in notifying the defendant that hе has been charged with a violation of probation. See Annot.,
In this case there is no evidence of any prejudice to the defendant from the delay in executing the warrant. The evidence relating to the violation of probation is undisputed. Under these circumstances, I would not reverse the judgment.