The Appeals Court has upheld the decision of a district court judge who found a defendant in violation of his probation after the defendant was charged with possessing a forged driver’s license (M.G.L. c. 90, § 24B).
The defendant appealed the district court’s ruling because the new offense was nolle prossed (i.e., not prosecuted) prior to the probation violation hearing.
The Appeals Court affirmed the lower court’s decision and rejected the argument that a new offense that is nolle prosequi cannot be used to justify a probation violation.
The defendant’s first argument on appeal is that the nolle prosequi of his underlying criminal charges should have terminated the probation violation proceedings. Although neither the dismissal of an underlying complaint due to a failure to prosecute…nor even a defendant’s acquittal prior to probation violation proceedings… require the termination of violation proceedings, the defendant argues that a nolle prosequi of the underlying complaint should. We disagree. The focus of a probation violation hearing where the violation alleged is the commission of a new offense is the defendant’s conduct, not a criminal complaint based on that conduct. As the Supreme Judicial Court has reiterated, revocation after a probation violation hearing may be based on “[a]ny conduct by a person on probation which constitutes a violation of any of the conditions of his probation.” … A criminal charge is irrelevant to the validity of the proceedings. Where a complaint criminally charging a defendant for conduct that also underlies his or her notice of a probation violation is nol prossed, the conduct remains a valid basis for a probation violation proceeding.
The full opinion is attached below:
Law Office of Justin R. McCarthy 