§706-627  Tolling of probation.  (1) 
Upon the filing of a motion to revoke a probation or a motion to enlarge the
conditions imposed thereby, the period of probation shall be tolled pending the
hearing upon the motion and the decision of the court.  The period of tolling
shall be computed from the filing date of the motion through and including the
filing date of the written decision of the court concerning the motion for
purposes of computation of the remaining period of probation, if any.  In the
event the court fails to file a written decision upon the motion, the period
shall be computed by reference to the date the court makes a decision upon the
motion in open court.  During the period of tolling of the probation, the
defendant shall remain subject to all terms and conditions of the probation
except as otherwise provided by this chapter.



(2)  In the event the court, following hearing,
refuses to revoke the probation or grant the requested enlargement of
conditions thereof because the defendant's failure to comply therewith was
excusable, the defendant may be granted the period of tolling of the probation
for purposes of computation of the remaining probation, if any. [L 1972, c 9,
pt of §1; am L 1977, c 106, §1; am L 1980, c 156, §1; am L 1985, c 192, §2; am
L 1986, c 314, §29]



 



COMMENTARY ON §706-627



 



  This section affords the defendant threatened with loss or
change of suspension or probation status the same procedural protection
afforded a defendant at the time of original disposition.[1]  Determinations to
revoke suspension or probation, or to change the conditions thereof, are
sometimes made with a degree of informality that does not afford to the
defendant adequate opportunity to obtain counsel and to be heard upon the
evidence.



This is an area
where dangers of abuse are real and the normal procedural protection proper. 
That a defendant has no right to suspension or probation does not justify the
alteration of his status by methods that must seem and sometimes be unfair.[2]



Although written notice, the right to be represented by
counsel, and the right to controvert and be heard upon the evidence, are
provided by this section, it is not contemplated that the court must strictly
enforce the rules of evidence.  In this type of hearing, where the relevant
issues are decided by a court without the presence of a jury, the court should
be granted some flexibility in this area.



  Act 106, Session Laws 1977, added subsections (2) and (3) to
provide for tolling the period of probation or suspension of sentence pending
the hearing to revoke the probation or suspension or to increase the conditions
thereof.  Formerly, with no tolling provisions, it was possible for the period
of probation or suspended sentence to run out before termination of the
hearing, relieving defendant of any further obligation even though the
defendant may have committed acts justifying change in the defendant's
probation or suspension status.  The amended section is intended to prevent
such situations from occurring.  Senate Standing Committee Report No. 1105,
House Standing Committee Report No. 450.



  Act 156, Session Laws 1980, made the granting of the period
of tolling discretionary rather than mandatory.  The Legislature felt that the
prior law gave the defendants an unfair advantage by allowing them
"credit" on their sentence even while they were not abiding by its
terms.  Senate Standing Committee Report No. 753-80, House Standing Committee
Report No. 434-80.



 



Case Notes



 



  The tolling provisions under this section apply to deferral
periods pursuant to a deferred acceptance of guilty plea under §853-1.  92 H.
322, 991 P.2d 832.



  Where State did not file a written motion to revoke
defendant's deferred acceptance of guilty plea, the probationary period was not
tolled; thus, as the deferment period had expired two months earlier, trial
court lacked jurisdiction to revoke defendant's deferred acceptance of guilty
plea.  118 H. 15, 185 P.3d 200.



  Filing motion under subsection (2) is not the only method of
tolling period of probation; motion under §706-626(3) also tolls period.  1 H.
App. 469, 620 P.2d 1082.



  Mentioned:  55 H. 632, 525 P.2d 1119.



 



__________



§706-627 Commentary:



 



1.  Cf. §706-604.



 



2.  M.P.C., Tentative Draft No. 2, comments at 152 (1954).