Opinion
10-P-2066
12-14-2011
COMMONWEALTH v. CAMDEN C., a juvenile.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We agree with the juvenile that where the second notice of alleged probation violations was issued on August 23, 2010, and there was no waiver of the seven- day notice of hearing provided for by Juvenile Court Standing Order 1-07, § III(b)(iii), it was impermissible for the court to hold a hearing on those alleged violations on the same date.
With respect to the first notice of alleged violations issued on August 19, 2010, we conclude that, even assuming the signed waiver of seven-day notice was not a proper waiver, the juvenile did waive any complaint about the lack of notice by the combination of failure of counsel to object on August 19, 2010, when the judge scheduled the hearing for August 23, 2010, and by counsel's stating on August 23 that she was willing to proceed with the hearing on the alleged curfew violation, one of the violations alleged in the first notification of alleged violations.
We note that the defendant's mother asked that the hearing not be scheduled between August 27 and September 4, 2010, because of a planned family vacation.
The juvenile makes no argument as to the sufficiency of the specificity of the allegations found in the August 19 violation notice, and we express no opinion on the question. See General Mills, Inc. v. Commissioner of Rev., 440 Mass. 154, 167 n.7 (2003); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
It is impossible to tell from the record what alleged violation or violations of probation conditions were found by the judge. See Commonwealth v. MacDonald, 53 Mass. App. Ct. 156, 159 (2001) (where a judge may have considered impermissible evidence, it is 'particularly important that the judge make findings as to what evidence brought him to the conclusion that the defendant had violated a condition of his probation, and why the violation warranted the revocation'). In light of our first conclusion, the judge could not properly have found the violations alleged in the August 23 notice, or relied upon any of them in her determination to revoke the juvenile's probation. It does appear that the judge found a violation of curfew as alleged in the first notice of alleged violations, but even if that were clear, the record leaves us unable to determine whether the other violations alleged in the notice issued on August 19 were also found. Nor can we tell whether revocation would have been ordered solely on the basis of whatever violations were found from among those alleged in the August 19 notification.
The order revoking probation therefore is vacated, and the case is remanded to the trial court for the judge's entry of additional findings about which violation or violations alleged in the notice of August 19 were found, and for a determination whether this violation or violations -- when not supplemented by any findings of violation based upon the allegations in the August 23 notice -- warrant a revocation of probation.
So ordered.
By the Court (Graham, Rubin & Wolohojian, JJ.),