Miss. R. Crim. P. 27.3

As amended through October 31, 2024

Rule 27.3 - Revocation of Probation

(a)Hearing. A hearing to determine whether probation should be revoked shall be held before the sentencing court, as prescribed by statute.

(b)Summary Disposition. The probationer may waive the hearing prescribed by Rule 27.3(a) and the sentencing court may make a final disposition of the issue, if:

(1) the probationer has been given sufficient notice of the charges and sufficient notice of the evidence to be relied upon; and

(2) the probationer admits, under the requirements of Rule 27.3(e), commission of the alleged violation.

(c)Presence. The probationer is entitled to be present at the hearing.

(d)Counsel.

(1) The probationer may be represented by retained counsel.

(2) Counsel shall be appointed to represent an indigent probationer if the probationer makes a colorable claim that:

(A) the probationer has not committed the alleged violation of the conditions of probation or the instructions issued by the supervising officer; or

(B) even when the violation is a matter of public record or is uncontested, there are substantial reasons that justify or mitigate the violation and make revocation inappropriate, and those reasons are complex or otherwise difficult to develop or present.

(e)Admissions by the Probationer. Before accepting an admission by a probationer that the probationer has violated a condition of probation or a lawful instruction issued by the supervising officer, the court shall determine that the probationer understands the following:

(1) the nature of the violation to which an admission is offered;

(2) the right to be represented by counsel as provided by Rule 27.3(d);

(3) the right to testify and to present witnesses and other evidence on the probationer's own behalf and to cross-examine adverse witnesses under subsection (f)(1); and

(4) that, if the alleged violation involves a criminal offense for which the probationer has not yet been tried, the probationer may still be tried for that offense and, although the probationer may not be required to testify, that any statement made by the probationer at the present proceeding may be used against the probationer at a subsequent proceeding or trial.

The court shall also determine that the probationer waives these rights, that the admission is voluntary and not the result of force, threats, coercion, or promises, and that there is a factual basis for the admission.

(f)Nature of the Hearing.

(1) The judge must find by a preponderance of the evidence that a violation of the conditions of probation or the instructions occurred. Each party shall have the right to present evidence and the right to confront and cross-examine adverse witnesses who appear and testify in person. The court may receive any reliable, relevant evidence not legally privileged, including hearsay.

(2) If the alleged violation involves a criminal offense for which the probationer has not yet been tried, the probationer shall be advised at the beginning of the revocation hearing that, regardless of the outcome of the revocation hearing, the probationer may still be held for that offense and that any statement made by the probationer at the hearing may be used against the probationer at a subsequent proceeding or trial.

(3) In cases involving breach of a condition of probation because of nonpayment of a fine, restitution, or court costs, incarceration shall not automatically follow nonpayment. Incarceration may be employed only after the court has examined the reasons for nonpayment and finds, on the record, that the probationer could have satisfied payment but refused to do so.

(g) Disposition. If the judge finds that a violation of the conditions of probation or lawful instructions occurred, it may revoke, modify, or continue probation.

(h) Record. The judge shall make a written statement or state for the record the evidence relied upon, and the reasons for, revoking probation.

Miss. R. Crim. P. 27.3

Adopted eff. 7/1/2017.

Comment

Rule 27.3 is drafted to comply with the constitutional requirements articulated in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 656 (1973). Rules 27.2 and 27.3 together set up a two-hearing process specifically required by Gagnon. Rule 27.2 provides for an informal preliminary hearing as prescribed by statute. Rule 27.3(a) then provides for the revocation hearing itself, as prescribed by statute. See, e.g., Miss. Code Ann. § 47-7-37. But see Miss. Code Ann. §§ 47-7-38 (authorizes the Mississippi Department of Corrections "to impose graduated sanctions as an alternative to judicial modification or revocation" in certain instances), 47-7-38.1 (directs the Mississippi Department of Corrections to establish "technical violation centers" to detain probation violators for "technical violations").

Section (b) allows the probationer to waive a revocation hearing within carefully defined limits. Two hearings are not necessary if, at the first hearing, the probationer has received sufficient notice of the charges and of the evidence of the probation violation, and the probationer admits commission of the alleged violation consistent with section (e).

Section (d)(1) provides a probationer may be represented by retained counsel. Section (d)(2) states the right to appointed counsel for indigent probationers is determined on a case-by-case basis, through a due-process analysis. See Riely v. State, 562 So. 2d 1206 (Miss. 1990); Gagnon, 411 U.S. at 790-91.

The procedure for accepting an admission under section (e) applies at either the informal preliminary hearing or the revocation hearing. If there is no admission, the hearing is conducted pursuant to section (f).

Section (f)(3) recognizes the constitutional limits on revocation of probation for non-payment. As the United States Supreme Court explained in Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983):

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation . . . . If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Id. at 672.

Section (h) is included to give a reviewing court a basis for evaluating the revocation hearing and decision. Gagnon requires that a written statement be made as to the evidence relied upon, and the reasons for, revoking probation. See Gagnon, 411 U.S. at 786. A written judgment entry would constitute a sufficient written statement.