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.
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.
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 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))