SLS 18RS-567 ORIGINAL
2018 Regular Session
SENATE BILL NO. 268
BY SENATOR JOHNS
CRIME/PUNISHMENT. Provides relative to felony probation. (8/1/18)
1 AN ACT
2 To amend and reenact Code of Criminal Procedure Art. 875.1(C), (D)(1)(a), (2), and (3), and
3 (E) and the introductory paragraph of 894.4(B) and 894.4(C), as enacted by Section
4 1 of Act 260 of the 2017 Regular Session, effective August 1, 2018, and
5 893(A)(1)(a) and (4), (B)(2), and (G), 895.6(A), and 900(A)(5) and to enact Code of
6 Criminal Procedure Art. 893(H), relative to felony probation; to provide relative to
7 termination of probation under certain circumstances; to provide relative to
8 extensions of probation; to eliminate provisions allowing a defendant to earn "street
9 credits" toward early termination of probation; to provide relative to financial
10 hardship hearings; and to provide for related matters.
11 Be it enacted by the Legislature of Louisiana:
12 Section 1. Code of Criminal Procedure Art. 875.1(C), (D)(1)(a), (2), and (3), and (E)
13 and the introductory paragraph of 894.4(B) and 894.4(C), as enacted by Section 1 of Act 260
14 of the 2017 Regular Session, effective August 1, 2018, and 893(A)(1)(a) and (4), (B)(2), and
15 (G), 895.6(A), and 900(A)(5) are hereby amended and reenacted and Code of Criminal
16 Procedure Art. 893(H) is hereby enacted to read as follows:
17 Art. 875.1. Determination of substantial financial hardship to the defendant
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1 * * *
2 C.(1) Notwithstanding any provision of law to the contrary, prior to ordering
3 the imposition or enforcement of any financial obligations as defined by this Article,
4 the court shall, upon motion of the defendant, may hold a hearing to determine
5 whether payment in full of the aggregate amount of all the financial obligations to
6 be imposed upon the defendant would cause substantial financial hardship to the
7 defendant or his dependents. The court may consider, among other factors,
8 whether any victim of the crime has incurred a substantial financial hardship
9 as a result of the criminal act or acts, whether the defendant is underemployed,
10 and whether the defendant has a history of avoiding financial obligations.
11 (2) The defendant may not waive the judicial determination of a substantial
12 financial hardship required by the provisions of this Paragraph.
13 D.(1) If the court determines that payment in full of the aggregate amount of
14 all financial obligations imposed upon the defendant would cause substantial
15 financial hardship to the defendant or his dependents, the court shall do either of the
16 following:
17 (a) Waive all or any portion of the financial obligations, except as provided
18 in Paragraph E of this Article.
19 * * *
20 (2)(a) The amount of each monthly payment for the payment plan ordered
21 pursuant to the provisions of Subsubparagraph (1)(b) of this Paragraph shall be equal
22 to the defendant's average gross daily income for an eight-hour work day
23 determined by the court after considering all relevant factors.
24 (b) If the court has ordered restitution, half a minimum of one-half of the
25 defendant's monthly payment shall be distributed toward the defendant's restitution
26 obligation.
27 (c) During Except as provided in Paragraph E of this Article, any periods
28 of unemployment, homelessness, or other circumstances in which the defendant is
29 unable to make the monthly payment, the court or the defendant's probation and
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SLS 18RS-567 ORIGINAL
1 parole officer is authorized to impose a payment alternative, including but not
2 limited to any of the following: substance abuse treatment, education, job training,
3 or community service.
4 (3) If, after the initial determination of the defendant's ability to fulfill his
5 financial obligations, the defendant's circumstances and ability to pay his financial
6 obligations change, the state, the defendant or his the defendant's attorney may file
7 a motion with the court to reevaluate the defendant's circumstances and determine,
8 in the same manner as the initial determination, whether under the defendant's
9 current circumstances payment in full of the aggregate amount of all the financial
10 obligations imposed upon the defendant would cause substantial financial hardship
11 to the defendant or his dependents. Upon such motion, if the court determines that
12 the defendant's current circumstances would cause substantial financial hardship to
13 the defendant or his dependents, the court may either waive or modify the
14 defendant's financial obligation, or recalculate the amount of the monthly payment
15 made by the defendant under the payment plan set forth in Subsubparagraph (1)(b)
16 of this Paragraph a modification of the monthly financial obligation referenced
17 herein is appropriate under the circumstances.
18 E. If a defendant is ordered to make monthly payments under a payment plan
19 established pursuant to the provisions of Subsubparagraph (D)(1)(b) of this Article,
20 the defendant's outstanding financial obligations resulting from his criminal
21 conviction are forgiven and considered paid-in-full if the defendant makes consistent
22 monthly payments for either twelve consecutive months or consistent monthly
23 payments for half of the defendant's term of supervision, whichever is longer.
24 Notwithstanding any other provision of this Article or any other provision of
25 law to the contrary, a court may not waive nor forgive restitution due to a crime
26 victim.
27 * * *
28 Art. 893. Suspension and deferral of sentence and probation in felony cases
29 A.(1)(a) When it appears that the best interest of the public and of the
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1 defendant will be served, the court, after a first, second, or third conviction of a
2 noncapital felony, may suspend, in whole or in part, the imposition or execution of
3 either or both sentences, where suspension is allowed under the law, and in either or
4 both cases place the defendant on probation under the supervision of the division of
5 probation and parole. The court shall not suspend the sentence of a second or third
6 conviction of R.S. 14:73.5. Except as provided in Paragraph G of this Article, the
7 period of probation shall be specified and shall not be more than three five years.
8 * * *
9 (4) Supervised release as provided for by Chapter 3-E of Title 15 of the
10 Louisiana Revised Statutes of 1950 shall not be considered probation and shall not
11 be limited by the five-year or three-year period for probation provided for by the
12 provisions of this Paragraph.
13 B.(1) * * *
14 (2)When suspension is allowed under this Paragraph, the defendant shall be
15 placed on probation under the supervision of the division of probation and parole.
16 The period of probation shall be specified and shall not be more than three five years,
17 except as provided in Paragraph G of this Article. The suspended sentence shall be
18 regarded as a sentence for the purpose of granting or denying a new trial or appeal.
19 * * *
20 G. If the court, with the consent of the district attorney, orders a defendant,
21 upon a third conviction or fourth felony conviction, to enter and complete a program
22 provided by the drug division of the district court pursuant to R.S. 13:5301, an
23 established driving while intoxicated court or sobriety court program, a mental health
24 court program established pursuant to R.S. 13:5351 et seq., a Veterans Court
25 program established pursuant to R.S. 13:5361 et seq., a reentry court established
26 pursuant to R.S. 13:5401, or the Swift and Certain Probation Pilot Program
27 established pursuant to R.S. 13:5371, the court may place the defendant on probation
28 for a period of not more than eight years if the court determines that successful
29 completion of the program may require that period of probation to exceed the three-
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SLS 18RS-567 ORIGINAL
1 year five-year limit. The court may not extend the duration of the probation period
2 solely due to unpaid fees and fines. The period of probation as initially fixed or as
3 extended shall not exceed eight years.
4 H. In the event that any defendant is placed on supervised probation for
5 a period of two years or more, at the time of sentencing the court shall fix a
6 probation review within two years of the date of sentencing for the purpose of
7 determining whether:
8 (1) The defendant has complied with the terms and conditions of
9 probation and as such is entitled to receive "earned compliance credits". In
10 making such determination the court may consider all relevant factors,
11 including but not limited to the defendant's:
12 (a) Substantial compliance with the terms and conditions of probation
13 or lack thereof.
14 (b) Subsequent criminal conduct.
15 (c) Use or abuse of controlled dangerous substances or alcohol.
16 (d) Employment history while on probation.
17 (e) Compliance with all restitution orders.
18 (f) Pursuit of education or vocational training.
19 (g) Support of all family obligations.
20 (h) Earnest pursuit of all available treatment, including specialty
21 treatment court participation.
22 (2) The probation term of the defendant who has been determined to
23 have complied with the terms and conditions of probation may be terminated
24 early as satisfactorily completed.
25 (3) In the event that the court declines to authorize earned compliance
26 credits or to terminate the defendant's probation early as satisfactorily
27 completed, the court shall conduct a review at or near the completion of each
28 successive year until such time as the defendant is released from probation.
29 (4) The division of probation and parole shall submit written compliance
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1 reports to the sentencing court, the prosecuting agency, and the defendant with
2 recommendations regarding all issues relevant to the defendant's probation
3 within ten days in advance of the probation review with complete and accurate
4 copies of same being forwarded to the prosecuting agency and the defense
5 counsel.
6 (5) Any party may request a contradictory hearing on the review.
7 However, if no contradictory hearing is requested the court may make an
8 extrajudicial determination and shall forward such to all parties within ten
9 days. Each party may then within ten days request a contradictory hearing for
10 the purpose of challenging the court's findings and ruling.
11 * * *
12 Art. 894.4. Probation; extension
13 * * *
14 B. The judge may extend probation only one time and only by a period of six
15 months for periods not to exceed one year each with a maximum of three
16 consecutive extensions for the purpose of monitoring collection of unpaid victim
17 restitution if the court finds on the record by clear and convincing evidence that the
18 court's temporary ongoing monitoring would ensure likely aid in the collection of
19 unpaid restitution more effectively than any of the following:
20 * * *
21 C. A six-month extension of probation Any extension ordered as provided
22 in Paragraph B of this Article shall apply only to the order of victim restitution. All
23 other conditions of probation during the six-month extension shall be terminated.
24 * * *
25 Art. 895.6. Compliance credits; probation
26 A. Every defendant on felony probation pursuant to Article 893 for an
27 offense other than a crime of violence as defined in R.S. 14:2(B) or a sex offense as
28 defined in R.S. 15:541 shall be entitled to earn a diminution of probation term, to
29 be known as "earned compliance credits", by good behavior, in accordance with the
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1 procedure provided in Code of Criminal Procedure Article 893. The amount of
2 diminution of probation term allowed under this Article shall be at the rate of thirty
3 days for every full calendar month on probation.
4 * * *
5 Art. 900. Violation hearing; sanctions
6 * * *
7 A. After an arrest pursuant to Article 899, the court shall cause a defendant
8 who continues to be held in custody to be brought before it within thirty days for a
9 hearing. If a summons is issued pursuant to Article 899, or if the defendant has been
10 admitted to bail, the court shall set the matter for a violation hearing within a
11 reasonable time. The hearing may be informal or summary. The defendant may
12 choose, with the court's consent, to appear at the violation hearing and stipulate the
13 revocation by simultaneous audio-visual transmission in accordance with the
14 provisions of Article 562. If the court decides that the defendant has violated, or was
15 about to violate, a condition of his probation it may:
16 * * *
17 (5)(a) Order that the probation be revoked. In the event of revocation the
18 defendant shall serve the sentence suspended, with or without credit for the time
19 served on probation at the discretion of the court. If the imposition of sentence was
20 suspended, the defendant shall serve the sentence imposed by the court at the
21 revocation hearing.
22 (b) Notwithstanding the provisions of Subsubparagraph (a) of this
23 Subparagraph, in the event of revocation for a defendant placed on probation for the
24 conviction of an offense other than a crime of violence as defined in R.S. 14:2(B) or
25 a sex offense as defined in R.S. 15:541, the defendant shall serve the sentence
26 suspended with credit for time served on probation.
27 * * *
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SLS 18RS-567 ORIGINAL
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement Jr.
DIGEST
SB 268 Original 2018 Regular Session Johns
Present law (effective 8/1/18) provides that prior to ordering the imposition or enforcement
of any financial obligations on a defendant on probation as defined in present law, the court
must determine whether payment in full of the aggregate amount of all the financial
obligations to be imposed upon the defendant would cause substantial financial hardship to
the defendant or his dependents. Present law provides that the defendant cannot waive the
judicial determination of a substantial financial hardship required by present law.
Proposed law changes the holding of a hearing to determine financial hardship from
mandatory to discretionary upon motion of the defendant. Proposed law further provides
that in making its determination relative to financial hardship, the court may consider,
among other factors, whether any victim of the crime has incurred a substantial financial
hardship as a result of the criminal act or acts, whether the defendant is underemployed, and
whether the defendant has a history of avoiding financial obligations.
Proposed law otherwise retains present law.
Present law (effective 8/1/18) provides that if the court determines that payment in full of
the aggregate amount of all financial obligations imposed upon the defendant would cause
substantial financial hardship to the defendant or his dependents, the court must do either of
the following:
(1)Waive all or any portion of the financial obligations.
(2)Order a payment plan that requires the defendant to make a monthly payment to
fulfill the financial obligations.
Proposed law retains present law except to add that the court may not waive nor forgive
restitution due to a crime victim.
Present law (effective 8/1/18) provides that the amount of each monthly payment for the
payment plan ordered pursuant to present law will be equal to the defendant's average gross
daily income for an 8-hour work day. Present law further provides that if the court has
ordered restitution, then ½ of the defendant's monthly payment is to be distributed toward
the defendant's restitution obligation.
Proposed law deletes the 8-hour day wages cap on the monthly restitution amount. Proposed
law further changes the maximum of ½ of the monthly obligation to a minimum and allows
the court to determine the appropriate amount and percentage that may be attributed to
restitution.
Proposed law otherwise retains present law.
Present law (effective 8/1/18) provides that any periods of unemployment, homelessness,
or other circumstances in which the defendant is unable to make the monthly payment, the
court or the defendant's probation and parole officer is authorized to impose a payment
alternative, including but not limited to substance abuse treatment, education, job training,
or community service.
Proposed law retains present law except to add that the court may not waive nor forgive
restitution due to a crime victim.
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SLS 18RS-567 ORIGINAL
Present law (effective 8/1/18) provides that if a defendant is ordered to make monthly
payments under a payment plan established pursuant to present law, then defendant's
outstanding financial obligations resulting from his criminal conviction are forgiven and
considered paid-in-full if the defendant makes consistent monthly payments for either 12
consecutive months or consistent monthly payments for ½ of the defendant's term of
supervision, whichever is longer.
Proposed law deletes present law. Proposed law further provides that, notwithstanding any
other provision of present law or proposed law to the contrary, a court may not waive nor
forgive restitution due to a crime victim.
Present law provides that, when it appears that the best interest of the public and of the
defendant will be served, the court, after a first, second, or third conviction of a noncapital
felony, may suspend, in whole or in part, the imposition or execution of either or both
sentences, where suspension is allowed under the law, and in either or both cases place the
defendant on probation under the supervision of the division of probation and parole.
Present law further provides that the court cannot suspend the sentence of a second or third
conviction of the crime of computer fraud.
Proposed law retains present law.
Present law provides that the period of probation cannot be longer than three years.
Proposed law changes the maximum probation period allowed from three years to five years.
Present law provides that supervised release as provided for by present law cannot be
considered probation and is not limited by the five-year or three-year period for probation
provided for by the provisions of present law and proposed law.
Proposed law deletes the "three-year" reference from present law in conformity with
proposed law and otherwise retains present law.
Present law provides that when suspension of sentence is allowed under present law, the
defendant is to be placed on probation under the supervision of the division of probation and
parole, and the period of probation must be specified and cannot be more than three years.
Proposed law changes the maximum probation period allowed from three years to five years
and otherwise retains present law.
Present law provides that if the court, with the consent of the district attorney, orders a
defendant, upon a third conviction or fourth felony conviction, to enter and complete a
program provided by the drug division of the district court pursuant to present law, an
established driving while intoxicated court or sobriety court program, a mental health court
program established pursuant to present law, a Veterans Court program established pursuant
to present law, a reentry court established pursuant to present law, or the Swift and Certain
Probation Pilot Program established pursuant to present law, the court may place the
defendant on probation for a period of not more than eight years if the court determines that
successful completion of the program may require that period of probation to exceed the
three-year limit. Present law further provides that the court may not extend the duration of
the probation period solely due to unpaid fees and fines. Present law further provides that
the period of probation as initially fixed or as extended shall not exceed eight years.
Proposed law provides that the court may place the defendant on probation for up to eight
years if successful completion of one of the enumerated present law programs requires the
period of probation to exceed the proposed law five-year period rather than the present law
three-year limit.
Proposed law otherwise retains present law.
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Proposed law provides that in the event that any defendant is placed on supervised probation
for a period of two years or more, at the time of sentencing the court is to fix a probation
review within two years of the date of sentencing for the purpose of determining whether:
(1) The defendant has complied with the terms and conditions of probation and as such
is entitled to receive "earned compliance credits". In making such determination the
court may consider all relevant factors, including but not limited to the defendant's:
(a)Substantial compliance with the terms and conditions of probation or lack
thereof.
(b)Subsequent criminal conduct.
(c) Use or abuse of controlled dangerous substances or alcohol.
(d) Employment history while on probation.
(e) Compliance with all restitution orders.
(f) Pursuit of education or vocational training.
(g) Support of all family obligations.
(h) Earnest pursuit of all available treatment, including specialty treatment court
participation.
(2) The probation term of the defendant who has been determined to have complied with
the terms and conditions of probation may be terminated early as satisfactorily
completed.
(3) In the event that the court declines to authorize earned compliance credits or to
terminate the defendant's probation early as satisfactorily completed, the court is to
conduct a review at or near the completion of each successive year until such time
as the defendant is released from probation.
(4) The division of probation and parole is to submit written compliance reports to the
sentencing court, the prosecuting agency, and the defendant with recommendations
regarding all issues relevant to the defendant's probation within 10 days in advance
of the probation review with complete and accurate copies of same being forwarded
to the prosecuting agency and the defense counsel.
(5) Any party may request a contradictory hearing on the review. However, if no
contradictory hearing is requested the court may make an extrajudicial determination
and forward such to all parties within 10 days. Each party may then within 10 days
request a contradictory hearing for the purpose of challenging the court's findings
and ruling.
Present law (effective 8/1/18) provides that the judge may extend probation only one time
and only by a period of six months for the purpose of monitoring collection of unpaid victim
restitution if the court finds on the record by clear and convincing evidence that the court's
temporary ongoing monitoring would ensure collection of unpaid restitution more effectively
than certain other methods enumerated in present law. Present law further provides that a
six-month extension of probation as provided in present law applies only to the order of
victim restitution, and all other conditions of probation during the six-month extension are
terminated.
Proposed law changes the period of time for which the judge may extend probation for the
purposes of monitoring collection of unpaid restitution from six months to three consecutive
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extensions for periods not to exceed one year each. Proposed law further changes the
purpose of monitoring from ensuring collection of unpaid restitution to being likely to aid
in the collection of unpaid restitution.
Proposed law otherwise retains present law.
Present law provides that every defendant on felony probation pursuant to present law for
an offense other than a crime of violence or a sex offense will earn a diminution of probation
term, to "earned compliance credits" ("good time") by good behavior. Present law further
provides that the amount of diminution of probation term allowed under present law is to be
at the rate of 30 days for every full calendar month on probation.
Proposed law retains present law.
Present law provides that if the court decides that the defendant has violated, or was about
to violate, a condition of his probation it may do one of several things, including order that
the probation be revoked. Present law further provides that in the event of revocation the
defendant must serve the sentence suspended, with or without credit for the time served on
probation at the discretion of the court. Present law further provides that if the imposition
of sentence was suspended, the defendant must serve the sentence imposed by the court at
the revocation hearing.
Proposed law retains present law.
Present law provides that in the event of revocation for a defendant placed on probation for
the conviction of an offense, other than a crime of violence or a sex offense, the defendant
will serve the sentence suspended with credit for time served on probation ("street credit").
Proposed law deletes present law.
Effective August 1, 2018.
(Amends C.Cr.P. Art. 875.1(C), (D)(1)(a), (2), and (3), and (E), 893(A)(1)(a) and (4), (B)(2),
and (G), 894.4(B)(intro para) and (C), 895.6(A), and 900(A)(5); adds C.Cr.P. Art. 893(H))
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