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Arizona Court Issues Important Opinion Regarding Defendants’ Rights While on Probation

In a recent case before an Arizona appellate court, the defendant argued that the trial court unreasonably modified the terms of his probation. The court’s response to the defendant’s argument brings up important questions such as whether a defendant on probation has the right to an attorney and whether a probationer can waive the right to the attorney if he does so knowingly and voluntarily. Ultimately, the opinion serves as a reminder that retaining qualified counsel is highly important in criminal proceedings, no matter what stage of the criminal proceedings are in play.

Probation Modification

The first question before the court was whether the defendant had the right to notice and a hearing before the court modified his probation terms. Apparently, the defendant had failed to comply with the terms of his probation – he failed to make court-ordered payments to the victim of his theft offense, and he committed at least one misdemeanor while on probation. The court provided the defendant with a form, which told him his probation would be extended for five additional years. The defendant signed the form.

On appeal, however, the higher court concluded that this form was insufficient under the law. The defendant instead had a right to a formal hearing before signing the form to indicate he understood the change in his probation. The US and Arizona constitutions guarantee a defendant due process, and that due process had been violated here.

Right to Counsel

Secondly, the court decided on appeal that defendants do not necessarily have the right to an attorney during a probation modification hearing. Thus, it was fine that the defendant had not consulted an attorney before signing away his rights. However, at the same time, the trial court must be sure that any defendant on probation is acknowledging the change in conditions “knowingly, intelligently, and voluntarily.”

In this case, there was no evidence on the record to show whether the defendant signed the probation modification form knowingly, intelligently, and voluntarily. There was evidence that the defendant suffered from mental health issues, and the court therefore couldn’t be sure whether he was able to fully understand what he was signing.

Therefore, said the court, while defendants can voluntarily retain counsel at the probation modification stage of proceedings (and would certainly benefit from consulting an attorney), they don’t necessarily have the right to court-appointed counsel. At the same time, they must have notice of the change and the opportunity for a hearing, and if they decide to refuse their hearing, they must do so “knowingly, intelligently, and voluntarily.” These standards will now be relevant for Arizona defendants moving forward.

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If you or a loved one has been criminally charged in Arizona, give our office a call to talk through a defense strategy that works for you. At the Law Office of James E. Novak, we take pride in our aggressive and dedicated approach for each individual client and each individual case. If you haven’t yet spoken with an experienced Maricopa County criminal defense lawyer, call us today for a free and confidential consultation at (480) 413-1499. You can also fill out our online form to tell us about your case and have an attorney reach back out to you as soon as possible.



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