Bill Text: IA HSB6 | 2021-2022 | 89th General Assembly | Introduced

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Bill Title: A bill for an act relating to probation, providing penalties, and including effective date provisions.(See HF 678.)

Spectrum: Committee Bill

Status: (Introduced - Dead) 2021-02-18 - Committee report, recommending amendment and passage. H.J. 490. [HSB6 Detail]

Download: Iowa-2021-HSB6-Introduced.html

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House Study Bill 6 - Introduced
HOUSE FILE _____
BY (PROPOSED COMMITTEE ON
PUBLIC SAFETY BILL BY
CHAIRPERSON KLEIN)
A BILL FOR
An Act relating to probation, providing penalties, and
including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. Section 907.1, Code 2021, is amended by adding
the following new subsections:
NEW SUBSECTION . 2A. “Discharge credit” means a fourteen-day
reduction from a defendant’s term of probation for each full
calendar month the defendant is in compliance with the terms
of the defendant’s probation.
NEW SUBSECTION . 2B. “Educational credit” means a ninety-day
reduction from a defendant’s term of probation when a defendant
earns a high school diploma or high school equivalency
certificate or completes a certified vocational, technical, or
career education or training program.
NEW SUBSECTION . 4A. “Technical violation” means a violation
by the defendant of the terms and conditions of probation other
than a conviction of the defendant for a new crime.
Sec. 2. Section 907.7, subsection 2, Code 2021, is amended
to read as follows:
2. The length of the probation shall not be less than one
year six months if the offense is a misdemeanor and shall not
be less than two years one year if the offense is a felony.
Sec. 3. Section 907.7, Code 2021, is amended by adding the
following new subsection:
NEW SUBSECTION . 2A. The court shall not impose a period
of probation consecutive to any other court-imposed period of
probation.
Sec. 4. Section 907.9, subsections 1 and 2, Code 2021, are
amended to read as follows:
1. At any time that the court determines that the purposes
of probation have been fulfilled and fees imposed under section
905.14 and court debt collected pursuant to section 602.8107
have been paid and court debt have been paid or are subject to
a payment plan , the court may order the discharge of a person
from probation.
2. a. At any time that a probation officer determines
that the purposes of probation have been fulfilled and fees
imposed under section 905.14 and court debt collected pursuant
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to section 602.8107 have been paid and court debt have been
paid or are subject to a payment plan , the officer may order
the discharge of a person from probation after approval of the
district director and notification of the sentencing court and
the county attorney who prosecuted the case.
b. Notwithstanding any earned discharge credit under
subsection 6 or any earned educational credit under subsection
7, upon successful completion of one-half of the length
of a defendant’s probation set pursuant to this section, a
probation officer shall petition the court for discharge of the
defendant’s probation. The court shall review the defendant’s
criminal record and consider whether to reduce the defendant’s
probation, to discharge the defendant from probation, or to
reduce the terms and conditions of the defendant’s probation
based upon the probation officer’s report. The court shall not
discharge the defendant from probation or reduce the period or
terms and conditions of probation if the defendant is subject
to a payment plan, has been found able to afford payments but
is purposely avoiding making payments, or has not completed
court-ordered counseling or treatment.
c. The court shall hold a hearing to review a probation
officer’s request for discharge of a defendant from probation
not less than once every six months after the defendant has
completed one-half of the length of probation, unless the
defendant is subsequently convicted of a new crime. The
court shall give reasonable notice to the defendant and the
prosecuting attorney of any hearing and the defendant shall
have the right to appear at the hearing.
Sec. 5. Section 907.9, subsection 4, paragraphs a and b,
Code 2021, are amended to read as follows:
a. At the expiration of the period of probation , if the
fees imposed under section 905.14 and court debt collected
pursuant to section 602.8107 have been paid and court debt
have been paid or are subject to a payment plan , the court
shall order the discharge of the person from probation. If
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portions of the court debt remain unpaid, the person shall
establish a payment plan with the clerk of the district court
or the county attorney prior to the discharge. The payment
plan shall be based on the defendant’s ability to pay. The
court shall forward to the governor a recommendation for or
against restoration of citizenship rights to that person upon
discharge. If the court’s recommendation to the governor
is against the restoration of the defendant’s citizenship
rights, the court shall provide a written explanation of
its recommendation to the defendant and give notice to the
defendant of the defendant’s right to appear at a hearing. A
person who has been discharged from probation shall no longer
be held to answer for the person’s offense.
b. Upon discharge from probation, if judgment has been
deferred under section 907.3 , the court’s criminal record with
reference to the deferred judgment, any counts dismissed by the
court, which were contained in the indictment, information,
or complaint that resulted in the deferred judgment, and
any other related charges that were not contained in the
indictment, information, or complaint but were dismissed, shall
be expunged. However, the court’s record shall not be expunged
until the person has paid , or is subject to a payment plan,
for the restitution, civil penalties, court costs, fees, or
other financial obligations ordered by the court or assessed
by the clerk of the district court in the case that includes
the deferred judgment. The expunged record is a confidential
record exempt from public access under section 22.7 but shall
be made available by the clerk of the district court, upon
request and without court order, to an agency or person granted
access to the deferred judgment docket under section 907.4,
subsection 2 . The court’s record shall not be expunged in any
other circumstances unless authorized by law.
Sec. 6. Section 907.9, Code 2021, is amended by adding the
following new subsections:
NEW SUBSECTION . 6. a. A defendant on probation shall
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be eligible to earn a discharge credit from the defendant’s
term of probation for each full calendar month in which the
defendant is in compliance with the terms of the defendant’s
probation.
b. A defendant shall not earn a discharge credit for a
calendar month in which a violation has occurred, the defendant
has absconded from probation, or the defendant is incarcerated.
c. A defendant shall not earn a discharge credit for a
partial calendar month or the last full calendar month of
probation.
d. A discharge credit shall be applied to the termination
date of the defendant’s probation within thirty days of the end
of the calendar month in which the discharge credit was earned.
NEW SUBSECTION . 7. A defendant on probation shall be
eligible to earn an educational credit from the defendant’s
term of probation for each full calendar month in which the
defendant is in compliance with the terms of the defendant’s
probation.
NEW SUBSECTION . 8. A defendant’s probation officer shall
notify the court when a defendant earns a discharge credit
or educational credit pursuant to subsection 6 or 7. Upon
receipt of a notice from the defendant’s probation officer,
the court shall conduct a review of the defendant’s probation
to determine if the defendant is eligible for a reduction or
termination of probation, taking into account any discharge
credit and educational credit the defendant has earned. A
defendant may earn both a discharge credit and an educational
credit to be applied toward the completion of the defendant’s
probation in accordance with this subsection.
Sec. 7. NEW SECTION . 907.12 Probation revocation ——
resentencing.
1. a. The court shall not impose a sentence of imprisonment
upon revoking probation unless the court finds any of the
following:
(1) The defendant has been convicted of a new felony or
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misdemeanor.
(2) The defendant’s conduct indicates it is likely the
defendant will commit another crime and no other condition of
supervision or treatment would decrease this likelihood based
upon the testimony of the defendant’s probation officer.
b. If the court finds any of the factors in paragraph “a” ,
the court shall follow the following sentencing guidelines:
(1) The court shall not sentence the defendant to
imprisonment on a first or second technical violation.
(2) The court may impose a sentence of up to seven days of
imprisonment upon a third technical violation.
(3) The court may impose a sentence of up to fifteen days of
imprisonment upon a fourth technical violation.
(4) The court may impose a sentence of up to thirty days of
imprisonment for a technical violation of certain conditions of
probation specified at the beginning of the defendant’s period
of probation.
2. There shall be no revocation of probation, imprisonment,
or increase in the terms and conditions of probation under this
section except upon the conclusion of a technical violation
revocation hearing in accordance with this subsection.
a. Upon an allegation of a technical violation of a
defendant by the defendant’s probation officer, a written
request for a technical violation revocation hearing shall be
filed with the court.
b. The court shall schedule a technical violation revocation
hearing within a reasonable time after receiving a written
request for a hearing.
c. The technical violation revocation hearing shall be held
before the defendant’s sentencing judge, if available.
d. The court shall hold a technical violation revocation
hearing to determine whether the facts warrant revocation of
a defendant’s probation and whether probation is still an
effective vehicle to accomplish rehabilitation of the defendant
and a sufficient deterrent against future criminal conduct.
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e. The defendant shall have the right to confront and
cross-examine witnesses.
3. a. Following a technical violation revocation hearing,
and prior to resentencing, the court shall give the defendant
the opportunity to be heard and the defendant shall be entitled
to representation by an attorney. If the defendant is indigent
or incapable of requesting an attorney, the court shall appoint
an attorney to represent the defendant.
b. The court shall state on the record the reasons for the
sentence imposed.
c. The court shall advise the defendant on the record of
the right to file a motion to modify the sentence, the right to
appeal, and of the right to the assistance of an attorney in
the preparation of the motion and appeal. The court shall also
advise the defendant of the time within which the defendant
must exercise the rights in this paragraph.
d. The court shall require that a record of the resentencing
proceeding be made and preserved to allow the record to be
transcribed including the record of any stipulation made
between the parties at any presentence hearing.
4. A motion to modify a sentence imposed after a technical
violation revocation hearing shall be filed within ten days
of the sentencing order. The filing of a motion to modify a
sentence shall not toll the thirty-day appeal period.
5. The court may revoke an order of probation upon proof
of a violation of any of the following specified conditions of
probation:
a. If a defendant has been convicted of a new felony, the
sentencing alternatives available to the court shall be the
same as were available at the time of a defendant’s initial
sentencing, and consideration shall be given to the defendant’s
time spent serving the order of probation.
b. If a defendant has been convicted of a new misdemeanor,
the sentencing alternatives available to the court shall be the
same as were available at the time of the defendant’s initial
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sentencing; however, the defendant’s sentence may include a
term of imprisonment of up to ninety days.
Sec. 8. NEW SECTION . 907.15 Payment of fines and fees.
1. The court shall direct that a defendant pay fines and
fees in conjunction with a term of probation, and shall create
a payment plan based upon the defendant’s ability to pay.
2. The court, upon the receipt of a petition from a
probation officer for termination of a defendant’s probation,
shall not consider the defendant’s lack of payment of fines and
fees as a disqualifying factor for early termination of the
defendant’s probation unless the defendant has been found to
be able to afford payments but has purposefully avoided making
payments.
3. A defendant who is compliant with the conditions of
probation shall not be precluded from obtaining a driver’s
license due to lack of payment of fines and fees, unless a
defendant has been found to be able to afford payments but has
purposefully avoided making payments.
Sec. 9. EFFECTIVE DATE. This Act, being deemed of immediate
importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill relates to probation, provides penalties, and
includes effective date provisions.
Iowa law provides that upon a plea of guilty, a verdict
of guilty, or a special verdict upon which a judgment of
conviction may be rendered, the trial court may defer judgment
and may place the defendant on probation upon conditions as
it may require, defer the sentence and assign the defendant
to a judicial district department of correctional service,
or suspend the sentence and place the defendant on probation
upon such terms and conditions as it may require including
commitment to an alternate jail facility or a community
correctional residential treatment facility to be followed by
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a period of probation.
LENGTH OF PROBATION. Under current law, the length of a
defendant’s probation shall not be less than one year if the
offense for which a defendant was convicted is a misdemeanor
and shall not be less than two years if the offense for which a
defendant was convicted is a felony. The bill changes these
minimum probation periods to not less than six months if the
offense is a misdemeanor and to not less than one year if the
offense is a felony. The bill provides that the court shall
not impose a period of probation consecutive to another imposed
period of probation.
DISCHARGE FROM PROBATION. Current law requires fees and
court debt to be paid before a defendant can be discharged
from probation. The bill allows a defendant to be discharged
from probation if the court determines that the purposes of
probation have been fulfilled and fees and court debt have been
paid or are subject to a payment plan. The bill requires a
probation officer to petition the court for the defendant’s
discharge if the defendant has successfully completed one-half
of the length of the defendant’s probation. The court shall
hold a hearing to review the defendant’s case and determine
whether to reduce the period of probation, terminate the period
of probation, or reduce the conditions of probation based on
the probation officer’s report. Such a hearing shall be held
every six months after the defendant has completed one-half
of the term of probation. The defendant and the prosecuting
attorney shall have notice of the hearing and the defendant
shall have the right to appear at the hearing. The court shall
not consider the defendant’s lack of payment of fines and fees
as a disqualifying factor for early termination of probation
unless the defendant is found to be able to afford payments and
is purposefully avoiding making payments. The court shall not
discharge the defendant from probation or reduce the period or
terms and conditions of probation if the defendant is subject
to a payment plan, has been found able to afford payments but
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is purposefully avoiding making payments, or has not completed
court-ordered counseling or treatment.
RESTORATION OF RIGHTS. Under current law, the court shall
forward a recommendation to the governor either for or against
the restoration of a defendant’s citizenship rights. Under the
bill, if the court’s recommendation is against the restoration
of a defendant’s citizenship rights, the court must provide a
written explanation of its recommendation to the defendant and
give notice to the defendant of the defendant’s right to appear
at a hearing.
DISCHARGE AND EDUCATION CREDITS. The bill provides that a
defendant shall earn a discharge credit of 14 days’ reduction
from the defendant’s term of probation for each full calendar
month in which the defendant has not violated any terms of
probation. A defendant on probation shall earn an educational
credit and have the defendant’s probation sentence reduced by
90 days if, during the period of probation, the defendant earns
a high school diploma or high school equivalency certificate
or successfully completes a certified vocational program,
certified technical program, certified career education
program, or training program.
The bill defines “discharge credit” as a 14-day reduction
from a defendant’s term of probation for each full calendar
month the defendant is in compliance with the defendant’s term
of probation and “educational credit” as a 90-day reduction
from a defendant’s term of probation when a defendant earns
a high school diploma or high school equivalency certificate
or completes a certified vocational, technical, or career
education or training program.
PAYMENT OF FINES AND FEES. The bill provides that the
court shall direct a defendant to pay fines and fees in
conjunction with a term of probation, and the court shall
create a payment plan based upon the defendant’s ability to
pay. Upon the receipt of a petition from a probation officer
for termination of a defendant’s probation, the court shall not
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consider the defendant’s lack of payment of fines and fees as a
disqualifying factor for early termination of the defendant’s
probation unless the defendant has been found to be able to
afford payments but has purposefully avoided making those
payments. The bill provides that a defendant who is compliant
with the conditions of probation is not precluded from
obtaining an Iowa state driver’s license due to lack of payment
of fines and fees, unless the defendant is found to be able to
afford payments and is purposefully avoiding making payments.
EXPUNGEMENT. Under current law, upon a defendant’s
discharge from probation, if the defendant’s judgment has been
deferred, the court’s criminal record of the deferred judgment
and other related information shall be expunged but expungement
is only allowed if the defendant has paid for all restitution,
civil penalties, court costs, fees, or other obligations. The
bill allows for expungement under these circumstances if the
defendant has a payment plan in place for any such financial
obligations.
PROBATION VIOLATIONS —— REVOCATION AND RESENTENCING. Under
the bill, upon a violation of probation, the court shall not
impose a sentence of imprisonment unless the defendant has
been convicted of a new crime or, based on the testimony
of the defendant’s probation officer, the conduct of the
defendant indicates that it is likely that the defendant will
commit another crime and no other condition of supervision or
treatment would decrease this likelihood. If the defendant
meets either of those factors, the court shall not sentence the
defendant to prison on a first or second technical violation,
the court may sentence the defendant to up to seven days
in prison upon a third technical violation, the court may
sentence the defendant to up to 15 days in prison upon a fourth
technical violation, and the court may sentence the defendant
to up to 30 days in prison for technical violations of specific
conditions.
The bill requires a technical revocation hearing and sets
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out provisions for the hearing, including the defendant’s right
to be heard. The court may revoke probation if the defendant
has been convicted of a new crime. The bill defines “technical
violation” as any violation by the defendant of the terms
and conditions of probation other than a conviction of the
defendant for a new crime.
The bill takes effect upon enactment.
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