This article is not intended as advice for your specific matter. Rather, it is a general article about Nevada law. If you have questions about your particular case, please call Mueller, Hinds and Associates, Chtd. immediately at (702) 940-1234. This information is valid as of July 24, 2017.
Who is eligible for probation in Nevada?
In Nevada a person convicted of a felony or gross misdemeanor must be sentenced by a District Court judge. Many, if not most, crimes allow the offender to be placed on probation but some do not. A person convicted of murder, first degree kidnapping, rape, and other serious offenses is not eligible to have their sentence suspended and therefore they must go to prison. On the other hand, a person convicted of a Category E felony must be sentenced to probation unless he was on probation when the crime was committed, has been revoked from probation or parole, has failed a rehabilitation program or has two prior felonies. Every other felony or gross misdemeanor conviction generally allows an offender to receive a grant of probation from the judge.
What is the process of getting probation like generally?
The process works as follows after a conviction or plea of guilty: 1) the offender is required to meet and interview with the Department of Parole and Probation, 2) the Department of Parole and Probation prepares a report with a recommendation based on the offender’s criminal history, the current offense, and other factors like gang affiliation and previous response to supervision, 3) at the sentencing hearing the judge considers the recommendation of the Department and decides the offender’s sentence after hearing arguments from the State and defense counsel.
The sentencing hearing is not a second trial and the court can consider evidence that would be inadmissible at trial. Silks v. State, 92 Nev. 91 (1976); United States v. Cifarelli, 401 F.2d 512 (1968). That said, the court cannot rely upon “impalpable or highly suspect evidence.” Silks v. State, 92 Nev. 91, 94 (1976).
If the judge sentences the offender to probation, that sentence will come with a set of standard conditions like allowing searches and reporting to the probation officer, sometimes will have special conditions like drug counseling or treatment, and that probationer will be ordered to report immediately to the local office of the Department of Parole and Probation. Probation has a purpose – to rehabilitate offender and protect public safety, but it also subjects the offender to searches, even if only based on a hunch. Seim v. State, 95 Nev. 89 (1979).
What is a presentence investigation report?
A presentence investigation report (PSI) is created after an interview by the Department of Parole and Probation of the offender, reviewing the offender’s criminal history and will contain all that information plus biographical data and a recommendation for probation or prison and the length of a sentence. The court, State and offender are provided a copy of the report and will have an opportunity to object to its contents. Why is this important? Because the PSI will follow the offender through probation and if necessary to prison. If it contains inaccurate information, such as erroneous gang affiliation information, it could affect the offender’s classification in prison, prevent programming early release. Also, if the PSI has information that is inaccurate, it might subject the offender to harassment and threats while in prison, if, for example, it contains an arrest or allegation of a sexual offense or offense against a child. The only time to object to this information is at the sentencing hearing, Stockmeyer v. State Board of Parole Commissioners, 127 Nev. ___, 255 P.3d 209, 213-214 (2012), and the court has the authority to order it be amended if it finds the information is erroneous, Sasser v. State, 324 P.3d 1221 (2014).
Can my sentence be modified once it has been announced by the judge?
Yes, but in very limited circumstances. Once the judge decides the sentence it is exceedingly hard to go back and change it without an agreement from the State. That said, if the sentence was based on “materially untrue assumptions or mistakes which work to the extreme detriment of the defendant.” State v. Eighth Judicial Dist. Ct., 110 Nev. 90 (1984).
Can the judge sentence me to jail and probation or to serve jail as a condition of completing probation?
Yes, a judge can sentence an offender to probation with incarceration as a condition of probation. Creps v. State, 94 Nev. 351 (1978). An offender while on probation is under a sentence of imprisonment, for the purposes of habeas corpus petitions, Adams v. Warden, Nev. State Prison, 97 Nev. 171 (1981).
What happens if I am accused of violating the terms of my probation?
The Sixth and Fourteenth Amendments to the United States Constitution requires that the offender be afforded a lawyer and a probation revocation hearing prior to being sent to prison. Flint v. Hocker, 462 F.2d 590 (9th Cir. Nev. 1972). These are not new trials and the protections afforded a criminal defendant are not applicable to a probationer in a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).
At a probation revocation hearing, the State must show that the offender violated a term of probation and is not a good candidate for reinstatement. What would count as sufficient to revoke probation? In Lewis v. State, 90 Nev. 436 (1974), the offender left the state without permission, changed his residence without permission and failed to report to the Department of Parole and Probation for several months. There is no right to a speedy probation revocation hearing, Herrera v. State, 2010 Nev. LEXIS 131 (2010), but the State cannot wait until the offender has finished serving a sentence in another state before initiating probation revocation proceedings under Del Hoyo v. State, 109 Nev. 1216 (1993).
Is hearsay admissible in a probation violation revocation hearing?
The answer is yes and no. Under Anaya v. State, 96 Nev. 119 (1980), hearsay can be admissible as long as it is not through multiple hearsay. In Anaya, the offender was accused of violating his probation by committing a new crime, a DUI. In the new case, Anaya waived his preliminary hearing and at the probation revocation hearing the probation officer used that waiver as the basis for revocation. The district court revoked his probation, but the Nevada Supreme Court disagreed and reversed the district court’s decision. The Court reiterated that Due Process requires that a revocation be based on “verified facts” so that “the exercise of discretion will be informed by an accurate knowledge of the [probationer’s] behavior.” Morrissey v. Brewer, 408 U.S. 471 (1972). Here, merely reciting the allegations in a police report without having it admitted into evidence was a violation of Due Process and required reversal.
You can subpoena documents and witnesses as long as it is relevant or has materially exculpatory evidence. Jaeger v. State, 113 Nev. 1275 (1997).
Can I transfer my probation to another state?
Yes, generally after going to the interstate compact process. The process requires the offender to fill out an application and submit it to the offender’s probation officer. If it is approved it is submitted to the sentencing state’s interstate compact office. If the sentencing state’s interstate compact office approves the application, it is submitted to the receiving state’s interstate compact office. If the receiving state compact office approves the application, then reporting instructions are submitted to the sentencing state’s probation office and the probation officer. These applications are approved routinely except sometimes those sentenced under gross misdemeanor treatment are sometimes not approved depending on the state.
Are you or a loved one facing a sentencing hearing or probation revocation hearing? Contact the experienced lawyers at Mueller Hinds & Associates for a free consultation.