Probation: requirements and conditions

It is what in Puerto Rico is called a suspended sentence or probation: the court passes the prison sentence but suspends its effects and places the person on probation, under the court’s own legal custody and under Corrections’ supervision, for the same period the sentence fixed. It is not a pardon nor an acquittal: the sentence exists and can be executed in full if probation is revoked. This guide covers the requirements, the conditions and revocation. Which offences are excluded from this benefit is another guide, because the list is long and has a life of its own.

Article 2 requires all the requirements to concur, not some. First, that the person had not been convicted, sentenced and imprisoned for any felony before committing the offence being prosecuted, and had not had the effects of a previous felony sentence suspended. Second, that the circumstances in which the offence was committed do not evidence a conduct or character problem whose favourable solution, in the interest of the community’s due protection, requires imprisonment. Third, that the sentencing judge has before them the Corrections Administrator’s report. Fourth, that where there is a child-support obligation, the person has complied with making the payments or is on a payment plan and complying with it. All this in addition to the offence not being among those the Act itself excludes.

• That the person had not been convicted, sentenced and imprisoned for any felony before committing the offence being prosecuted, and had not had the effects of a previous felony sentence suspended (Article 2(1)).Verified against the official source
• That the circumstances in which the offence was committed do not evidence in its author a conduct or character problem whose favourable solution, in the interest of the community’s due protection, requires imprisonment (Article 2(2)).Verified against the official source
• That the sentencing judge has before them a report rendered by the Corrections Administrator after a thorough investigation of the sentenced person’s family background and social history (Article 2(3)).Verified against the official source
• That, where there is an obligation to pay child support, the person has complied with making the payments or is on a payment plan and is complying with it (Article 2(4)).Verified against the official source
• Conditions are imposed and recorded in writing when sentence is passed, and the court may not impose conditions beyond those expressly recorded in writing (Article 2A).Verified against the official source
• No proceeding to revoke probation may be started if the condition on which revocation is sought is not recorded in writing in the sentence passed (Article 2A).Verified against the official source

• The Corrections Administrator’s report on family background and social history, which the judge must have before them before suspending the sentence (Article 2(3)).
• The written sentence with the probation conditions, because it is the only document that can ground a revocation (Article 2A).
• Evidence of being current with child support or of being on a payment plan and complying with it, where that obligation exists (Article 2(4)).

1. 1

   Step 1: The offence first, the requirements second

   Article 2 works in two stages and it is best not to skip the first. The Court of First Instance may suspend the effects of a prison sentence in every felony case and in every misdemeanour arising from the same facts or the same transaction, except the offences the Act itself excludes in a long list including murder, sexual assault, rape, kidnapping, robbery, burglary, several Weapons Act offences and felonies against public office, among others. We cover that list in another guide because it has detail of its own. Only if the offence is not excluded does the case move to the second stage: the four requirements that must all concur when sentence is imposed.

2. 2

   Step 2: The four requirements, one by one

   The first looks at the criminal past: that the person, before the date on which suspension is sought, had not been convicted, sentenced and imprisoned for any felony before committing the offence being prosecuted, and had not had the effects of a previous felony sentence suspended. That is two things inside one requirement: neither prior imprisonment for a felony, nor a previous suspension. The second looks at the circumstances of the act: that they do not evidence in its author a conduct or character problem whose favourable solution, in the interest of the community’s due protection, requires imprisonment. The third is documentary and outside the person’s control: that the sentencing judge has before them a report rendered by the Corrections Administrator after a thorough investigation of family background and social history, and that from that report the judge can conclude no aspect of that person’s life evidences a need for imprisonment. The fourth is the one most people overlook: that where there is an obligation to pay child support, the person has complied with making the payments or is on a payment plan and is complying with it.

3. 3

   Step 3: What the court may add

   The same Article 2 leaves the court three powers worth knowing because they change what gets signed. It may, at its discretion and in addition to placing the person on probation, impose a fine whose amount is at its discretion. It may require the person on probation, while on probation, to compensate the injured party for the damage caused, or to assume the obligation of correcting the harm caused by their criminal act. And one consequence that is not optional: once on probation, the person remains under the court’s legal custody until the expiry of the period fixed in their sentence.

4. 4

   Step 4: Conditions only count if they are in writing

   Article 2A is this Act’s most useful part for someone already on probation. The sentencing court shall impose and record in writing, as part of the conditions, the probationer’s commitment not to engage in criminal conduct and not to associate with people known for participating in illegal activities. And then the limit: the court may not impose conditions beyond those expressly recorded in writing when sentence was passed. Later the same article closes the circle from the other side: no proceeding to revoke probation may be started if the condition on which revocation is sought is not recorded in writing in the sentence passed. Keep the sentence. It is the document that defines what can and cannot be demanded of you.

5. 5

   Step 5: What else is consented to on accepting probation

   Article 2A adds a list of conditions the Act takes as given. The person shall have satisfied the special penalty to the Victims Fund provided in the Penal Code. They shall consent to submitting to a regular programme for detecting the presence of controlled substances through reliable tests allowing their guidance, treatment and rehabilitation; to DNA sampling where the law requires it; and to having their name, address and other personal data recorded in the Registry of Persons Convicted of Violent Sexual Offences and Child Abuse, in the Registry of Persons Convicted of violations of the Domestic Violence Prevention and Intervention Act, or in the Registry of Persons Convicted of Corruption, when convicted of one of the offences listed there. They shall also consent to probation being revoked in absentia if they have left the jurisdiction or their whereabouts are unknown for having changed address without informing their probation officer. That last one is a concrete reason to report every move.

6. 6

   Step 6: Medical cannabis: the exception the Act wrote

   This goes here because it is concrete and misunderstood. Article 2A provides that detecting or finding cannabis in a probationer’s body through a test for controlled substances may not be considered a violation of the terms for granting probation, nor may the Article 4 revocation procedure be started, if the probationer has been certified as a patient by recommendation of a person licensed in Puerto Rico authorised to practise medicine, holding a licence to prescribe and administer drugs under state and federal law and regulation, meeting the requirements of Act 42-2017, and to whom the Medical Cannabis Regulatory Board has issued an identification after the registration process. The certification and the identification are the two pieces the Act names. We did not read Act 42-2017 and report nothing from it.

7. 7

   Step 7: How long it lasts and who supervises

   Article 3 says it in one line: the probation period shall equal the period fixed in the sentence. During that time the Corrections Administration shall exercise the degree of supervision it deems necessary to achieve the person’s rehabilitation and protect the community, and every person on probation shall be subject to a disciplinary regime of life and a treatment plan whose duration and conditions are at Corrections’ discretion, according to the specific conduct problem they present. The Corrections Administration, in consultation with the Institute of Forensic Sciences, adopts the regulation and the testing procedure for detecting controlled substances. And there is an express consequence: refusing to submit to the testing programme or the rehabilitation treatment shall lead the sentencing court to revoke probation and order imprisonment.

8. 8

   Step 8: If it is revoked: the terms and what is lost

   Article 4 opens with the harshest consequence and it is worth reading before the terms. The sentencing court may, at any time when in its judgement probation is incompatible with the community’s due safety or with the purpose of rehabilitation, revoke that liberty and order imprisonment for the complete period stated in the sentence whose execution it suspended, without crediting the person the period of time they spent on probation. Time outside does not count. The procedure’s terms: the arrested probationer must be brought before a magistrate for the initial summary hearing without unnecessary delay, in a term not exceeding thirty-six hours from arrest; if the Prosecution requests an ex parte hearing, it must be held within twenty-four hours of the request; and the final revocation hearing must be held within a term not exceeding fifteen days, save just cause or agreement of the parties with the judge’s assent. At the initial summary hearing the probationer has the opportunity to be heard and present evidence in their favour, may confront the socio-penal technician who filed the report and available adverse witnesses, may be assisted by counsel, and the burden of proof falls on the Prosecution. A warning from the same article: a probable-cause determination for a new offence is sufficient cause to provisionally revoke the benefits at that moment.

It is not an application filed at a counter: the decision is taken by the Court of First Instance when imposing sentence, with the Corrections Administrator’s report before it. Supervision during the period is carried out by the Corrections Administration through the probation officer. Revocation hearings are held before a magistrate of the Court of First Instance. The Act publishes no addresses, telephones, forms or portals, and we do not guess government internet addresses.

• Believing it is enough that the offence is not excluded: the four Article 2 requirements must also concur.
• Forgetting child support: the fourth requirement demands being current or on a payment plan and complying with it.
• Thinking a verbal condition from the probation officer binds you: the court may not impose conditions beyond those written in the sentence.
• Accepting a revocation proceeding over a condition not written in the sentence: the Act forbids starting one.
• Believing the time you spent on probation is credited if it is revoked: Article 4 says expressly that it is not.
• Moving without telling the probation officer: the Act allows revocation in absentia if your whereabouts are unknown for that reason.
• Refusing controlled-substance tests or treatment: Article 3 says that leads to revocation and imprisonment.
• Assuming a positive cannabis result revokes you: it does not count if you are certified as a patient and hold the Medical Cannabis Regulatory Board identification.
• Confusing probation with an acquittal: the sentence exists and the person remains under the court’s legal custody until the period expires.
• Not preparing for the initial summary hearing: it is where you can be heard, present evidence, confront the socio-penal technician and be assisted by counsel.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov