PROBATION AND PAROLE - EFFECT OF FELONY ACQUITTAL ON PROBATION REVOCATION

• NCJ Number: 66413
• Journal: Oklahoma Law Review Volume: 31 Issue: 2 Dated: (SPRING 1978) Pages: 474-485
• Author(s): E YOUNG
• Date Published: 1978
• Length: 12 pages
• Corporate Author: University of Oklahoma
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE EXAMINES JUDICIAL ARGUMENTS REGARDING REVOCATION OF PROBATION FOLLOWING FELONY ACQUITTAL AS A BASIS FOR DETERMINING OKLAHOMA'S POSITION ON THE ISSUE.

Abstract

THE COMMISSION OF A FELONY BY A PAROLEE OR PROBATIONER IS ONE OF SEVERAL GROUNDS UPON WHICH PROBATION CAN BE REVOKED. THE STATE MAY ELECT TO PROSECUTE THE DEFENDANT DIRECTLY FOR THE FELONY, REVOKE THE PROBATION, OR BOTH. IF THE STATE PROSECUTES, IT MUST PROVE GUILT BEYOND A REASONABLE DOUBT. HOWEVER, IF IT CHOOSES TO REVOKE PROBATION, IT NEED ONLY PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT VIOLATED THE CONDITIONS OF PROBATION OR PAROLE BY COMMITTING THE SUBSEQUENT FELONY. WHERE A CONVICTION IS OBTAINED, DUE PROCESS REQUIREMENTS ARE MET. THE PROBLEM ARISES WHEN THE STATE PROSECUTES AND THE DEFENDANT IS ACQUITTED. UNTIL RECENTLY, IT HAD BEEN UNIFORMLY HELD THAT AN ACQUITTAL WOULD NOT PRECLUDE A REVOCATION PROCEEDING BASED ON THE SAME OFFENSE. HOWEVER, THE ILLINOIS SUPREME COURT DECISION IN PEOPLE V. GRAYSON (1974) HELD THAT AN ACQUITTAL WOULD BE AN EFFECTIVE BAR TO A SUBSEQUENT REVOCATION PROCEEDING. THE VIEW THAT AN ACQUITTAL DOES NOT BAR REVOCATION OF PROBATION RESTS ON THE DISTINCTION BETWEEN A CRIMINAL PROSECUTION AND A REVOCATION HEARING AND ON THE INAPPLICABILITY OF THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY AND THE DOCTRINE OF COLLATERAL ESTOPPEL. THE 'BEYOND A REASONABLE DOUBT' STANDARD IN A CRIMINAL TRIAL RENDERS AN ACQUITTAL INCONCLUSIVE FOR THE PURPOSES OF THE REVOCATION USING A LESSER BURDEN OF PROOF. THE OPPOSING VIEW HAS BEEN TAKEN ONLY IN ILLINOIS, BUT ADDITIONAL SUPPORT HAS BEEN GIVEN IT BY A FEDERAL DISTRICT COURT DECISION. THE VIEW CONTENDS THAT THE DIFFERENCE IN THE BURDEN OF PROOF IS NOT THE PIVOTAL ISSUE. MORE IMPORTANT IS THE QUASI-CRIMINAL NATURE OF THE REVOCATION PROCEEDING WHICH REQUIRES EXTENDING CERTAIN PROTECTIONS TO THE PROBATIONER WHICH ARE NORMALLY EXTENDED ONLY TO A CRIMINAL DEFENDANT. THE OKLAHOMA COURT OF CRIMINAL APPEALS SEEMS TO BE LEANING TOWARD THE MAJORITY VIEW, THAT ACQUITTAL DOES NOT BAR SUBSEQUENT REVOCATION BASED ON THE SAME OFFENSE. FOOTNOTES ARE INCLUDED. (LWM)