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28	28	STATE OF OKLAHOMA
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30	30	1st Session of the 58th Legislature (2021)
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32	32	HOUSE BILL 1017 By: Phillips
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38	38	AS INTRODUCED
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40	40	An Act relating to criminal procedure; amending 22
41	41	O.S. 2011, Section 991b, as last amended by Section
42	42	3, Chapter 459, O.S.L. 2019 (22 O.S. Supp. 2020,
43	43	Section 991b), which relates to revocation of
44	44	suspended sentences; prohibiting revocation of
45	45	suspended sentence under certain circumstances;
46	46	providing exceptions; and providing an effective
47	47	date.
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52	52	BE IT ENACTED BY THE PEOPLE OF T HE STATE OF OKLAHOMA:
53	53	SECTION 1. AMENDATORY 22 O.S. 2011, Section 991b, as
54	54	last amended by Section 3, Chapter 459, O.S.L. 2019 (22 O.S. Supp.
55	55	2020, Section 991b), is amended to read as follows:
56	56	Section 991b. A. Whenever a senten ce has been suspended by the
57	57	court after conviction of a person for any crime, the suspended
58	58	sentence of the person may not be revoked, in whole or part, for any
59	59	cause unless a petition setting forth the grounds for such
60	60	revocation is filed by the district attorney with the clerk of the
61	61	sentencing court and competent evidence justifying the revocation of
62	62	the suspended sentence is presented to the court at a hearing to be
63	63	held for that purpose within twenty (20) days after the entry of the
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90	90	plea of not guilty to the petition, unless waived by both the state
91	91	and the defendant. The State of Oklahoma may dismiss the petition
92	92	without prejudice one time upon good cause shown to the court,
93	93	provided that any successor petition must be filed within forty -five
94	94	(45) days of the date of the dismissal of the petition.
95	95	B. Whenever a sentence has been suspended by the court after
96	96	conviction of a person for any crime, the suspended sentence of the
97	97	person may not be revoked in whole for a technical violation unless
98	98	a petition setting forth the grounds for such revocation is filed by
99	99	the district attorney with the clerk of the sentencing court and
100	100	competent evidence justifying the revocation of the suspended
101	101	sentence is presented to the court at a hearing to be held for that
102	102	purpose within twenty (20) days after the entry of the plea of not
103	103	guilty to the petition, unless waived by both the state and the
104	104	defendant. The State of Oklahoma may dismiss the petition without
105	105	prejudice one time upon good cause shown to the court; prov ided,
106	106	that any successor petition must be filed within forty -five (45)
107	107	days of the date of the dismissal of the petition. Any revocation
108	108	of a suspended sentence based on a technical violation shall not
109	109	exceed six (6) months for a first revocation and five (5) years for
110	110	a second or subsequent revocation.
111	111	C. "Technical violation" as used in this section means a
112	112	violation of the court -imposed rules and conditions of probation,
113	113	other than:
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140	140	1. Committing or being arrested for a new crime;
141	141	2. Attempting to fa lsify a drug screen, or three or more failed
142	142	drug or alcohol screens within a three -month period;
143	143	3. Failing to pay restitution;
144	144	4. Tampering with an electronic monitoring device;
145	145	5. Failing to initially report or missing assigned reporting
146	146	requirements for an excess of sixty (60) days;
147	147	6. Unlawfully contacting a victim, codefendant or criminal
148	148	associates;
149	149	7. Five or more separate and distinct technical violations
150	150	within a ninety-day period; or
151	151	8. Any violation of the Specialized Sex Offender Rules.
152	152	D. 1. The Department of Corrections shall develop a matrix of
153	153	technical violations and sanctions to address violations committed
154	154	by persons who are being supervised by the Department. The
155	155	Department shall be authorized to use a violation response and
156	156	intermediate sanction process based on the sanction matrix to apply
157	157	to any technical violations of probationers. Within four (4)
158	158	working days of the discovery of the violation, the probation
159	159	officer shall initiate the violation response and intermediate
160	160	sanction process. The sentencing judge may authorize any
161	161	recommended sanctions, which may include, but are not limited to:
162	162	short-term jail or lockup, day treatment, program attendance,
163	163	community service, outpatient or inpatient treatment, monetary
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190	190	fines, curfews, ignition interlock devices on vehicles, or a one -
191	191	time referral to a term of confinement of six (6) months in an
192	192	intermediate revocation facility operated by the Department of
193	193	Corrections; provided, upon approval of the district attorney, a
194	194	person may be sanctioned to serve additional terms of confinement in
195	195	an intermediate revocation facility. The probation officer shall
196	196	complete a sanction form, which shall specify the technical
197	197	violation, sanction, and the action plan to correct the noncompliant
198	198	behavior resulting in the technical violation. The probation
199	199	officer shall refer to the sanctioning matrix to determine the
200	200	supervision, treatment, and sanctions appropriate to address the
201	201	noncompliant behavior. The probation officer shall refer the
202	202	violation information and recommended response with a sanction plan
203	203	to the Department of Corrections to be heard by a hearing officer.
204	204	The Department of Corrections shall develop a sanction matrix,
205	205	forms, policies and procedures necessary to implement this
206	206	provision. The Department of Corrections shall establish procedures
207	207	to hear responses to technical violations and review sanction plans
208	208	including the following:
209	209	a. hearing officers shall report through a chain of
210	210	command separate from that of the supervising
211	211	probation officers,
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238	238	b. the Department shall provide the offender written
239	239	notice of the violation, the evidence relied upon, and
240	240	the reason the sanction was imposed,
241	241	c. the hearing shall be held unless the offender waives
242	242	the right to the hearing,
243	243	d. hearings shall be electronically recorded, and
244	244	e. the Department shall provide to judges and district
245	245	attorneys a record of all violations and actions taken
246	246	pursuant to this subsection.
247	247	2. The hearing officer shall determine based on a preponderance
248	248	of the evidence whether a technical violation occurred. Upon a
249	249	finding that a technical violation occurred, the hearing officer may
250	250	order the offender to participate in the recommended sanction plan
251	251	or may modify the plan. Offenders who accept the sanction plan
252	252	shall sign a violation response sanction form, and the hearing
253	253	officer shall then impose the sanction. Failure of the offender to
254	254	comply with the imposed sanction plan shall constitute a violation
255	255	of the rules and conditions of supervision that may result in a
256	256	revocation proceeding. If an offender does not voluntarily accept
257	257	the recommended sanction plan, the Department shall either impose
258	258	the sanction and allow the offender to appeal to the district court,
259	259	or request a revocation proceeding as provided by l aw. Every
260	260	administrative hearing and sanction imposed by the Department shall
261	261	be appealable to the district court.
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288	288	3. Absent a finding of willful nonpayment by the offender, the
289	289	failure of an offender to pay fines and costs may not serve as a
290	290	basis for revocation, excluding restitution.
291	291	E. 1. Where one of the grounds for revocation is the failure
292	292	of the defendant to make restitution as ordered, the Department of
293	293	Corrections shall forward to the district attorney all information
294	294	pertaining to the failure of the defendant to make timely
295	295	restitution as ordered by the court, and the district attorney shall
296	296	file a petition setting forth the grounds for revocation.
297	297	2. The defendant ordered to make restitution can petition the
298	298	court at any time for remission o r a change in the terms of the
299	299	order of restitution if the defendant undergoes a change of
300	300	condition which materially affects the ability of the defendant to
301	301	comply with the order of the court.
302	302	3. At the hearing, if one of the grounds for the petition for
303	303	revocation is the failure of the defendant to make timely
304	304	restitution as ordered by the court, the court will hear evidence
305	305	and if it appears to the satisfaction of the court from such
306	306	evidence that the terms of the order of restitution create a
307	307	manifest hardship on the defendant or the immediate family of the
308	308	defendant, the court may cancel all or any part of the amount still
309	309	due, or modify the terms or method of payment. Provided, if the
310	310	court determines that a reduction in the restitution still due is
311	311	warranted, the court shall equally apply the same percentage
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338	338	reduction to any court -ordered monetary obligation owed by the
339	339	defendant including, but not limited to, fines, court costs and
340	340	costs of incarceration.
341	341	F. The court may revoke a portion of the se ntence and leave the
342	342	remaining part not revoked, but suspended for the remainder of the
343	343	term of the sentence, and under the provisions applying to it. The
344	344	person whose suspended sentence is being considered for revocation
345	345	at the hearing shall have the rig ht to be represented by counsel, to
346	346	present competent evidence in his or her own behalf and to be
347	347	confronted by the witnesses against the defendant. Any order of the
348	348	court revoking the suspended sentence, in whole or in part, shall be
349	349	subject to review on appeal, as in other appeals of criminal cases.
350	350	Provided, however, that if the crime for which the suspended
351	351	sentence is given was a felony, the defendant may be allowed bail
352	352	pending appeal. If the reason for revocation be that the defendant
353	353	committed a felony, the defendant shall not be allowed bail pending
354	354	appeal.
355	355	G. Notwithstanding the provisions of subsections A and B of
356	356	this section, when the suspended sentence of a person is being
357	357	considered for revocation for an offense where the penalty has
358	358	subsequently been lowered to a misdemeanor, the sentence shall be
359	359	modified to a term that does not exceed the current maximum
360	360	sentence.
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387	387	H. Whenever a sentence has been suspended by the court after
388	388	conviction of a person for any crime, the suspended sentence ma y not
389	389	be revoked, in whole or part, for any person who uses or possesses
390	390	medical marijuana pursuant to a valid medical marijuana patient
391	391	license issued under the provisions of Section 420 of Title 63 of
392	392	the Oklahoma Statutes unless:
393	393	1. The sentencing cour t previously found that, based on
394	394	material evidence, prohibiting the otherwise lawful use and
395	395	possession of medical marijuana is necessary and appropriate to
396	396	accomplish the goals of sentencing; or
397	397	2. The person was convicted of driving or being in actual
398	398	physical control of a motor vehicle while under the influence of
399	399	marijuana or convicted of operating a motor vehicle while impaired
400	400	by the use of marijuana.
401	401	SECTION 2. This act shall become effective November 1, 2021.
402	402
403	403	58-1-6500 GRS 12/21/20

Oklahoma 2022 Regular Session

Oklahoma House Bill HB1017 Compare Versions