Wednesday, May 15, 2013

State Has an Obligation to Prosecute Violation of Probation in a Prompt Manner

My current client was put on 18 months of probation in May of 2007. (He was not my client in 2007 when he was charged and convicted of his crime and put on probation.) In November of 2007 allegations were filed with the court that he had violated his probation. Based on the allegations of violation filed in November of 2007 a warrant was issued for the arrest of my client.Although my client stopped going to probation he did still remain in the Montgomery County Maryland area. Further, he kept in occasional touch with his probation agent on an informal basis. Finally he had other court matters wherein he appeared in the Maryland court system. He was never served with the arrest warrant.

In the spring of 2013 he was stopped for a traffic matter and served with a warrant charging him with violation of probation in November of 2007.

The general rule in Maryland is that if the allegation of violation of probation occurred during the period of probation the state may file this at any time. It can be filed even after probation has ended. In this case the allegations were filed while probation was ongoing. The problem for the prosecution in this case is that they did not serve the warrant until about 5 1/2 years after the warrant was issued. Maryland appellate courts have held that a defendant is entitled to due process rights as guaranteed by the United States Constitution. The touchstone of due process is fundamental fairness. It is unfair to a defendant to let this type of charge linger for such a long time. Memories fade and witnesses disappear altogether. There is the burden of waiting for the other shoe to drop.

I was armed with my case law and ready to argue but it was unnecessary. I suspect the judge knew where I was going to be coming from and closed the probation in a satisfactory manner.

There is an old maxim in equity law, "he who sits on his rights loses them".

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