House Bill 346

AN ACT TO AMEND SECTION 47-7-34, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE MAXIMUM FIVE YEARS THAT MAY BE IMPOSED BY A COURT FOR POST-RELEASE SUPERVISION MAY BE EXTENDED UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 47-7-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE COURT MAY FIX THE PERIOD OF PROBATION TO THE STATUTORY MAXIMUM PERIOD WHICH THE DEFENDANT MIGHT ORIGINALLY HAVE BEEN SENTENCED TO AS LONG AS SUCH PERIOD DOES NOT EXCEED FIVE YEARS; TO PROVIDE THAT AN OFFENDER MAY NOT HAVE HIS OR HER PROBATION REVOKED IF THE OFFENDER HAS COMMITTED AN INITIAL TECHNICAL VIOLATION UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE THAT FOR THE SECOND TECHNICAL VIOLATION, RATHER THAN THE THIRD VIOLATION, AN OFFENDER MAY BE IMPRISONED IN A TECHNICAL VIOLATION CENTER OR A RESTITUTION CENTER FOR FOURTEEN DAYS RATHER THAN 120 DAYS; TO PROVIDE THAT FOR A THIRD TECHNICAL VIOLATION, AN OFFENDER MAY BE IMPRISONED FOR 120 DAYS; TO PROVIDE THAT FOR A FOURTH TECHNICAL VIOLATION AN OFFENDER MAY BE IMPRISONED FOR 180 DAYS; TO PROVIDE THAT FOR FIVE OR MORE TECHNICAL VIOLATIONS AN OFFENDER MAY BE IMPRISONED FOR THE REMAINDER OF HIS OR HER SENTENCE; TO AMEND SECTION 47-7-27, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 47-7-34, Mississippi Code of 1972, is amended as follows:

47-7-34. (1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed * * * five (5) years from the release of the defendant from any active period of incarceration. The limitation on the period of probation shall not apply to the extent that an additional period is necessary (i) for the defendant to participate in a court-ordered program or (ii) if a defendant owes restitution and is still subject to paying such restitution. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.

(2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence as required pursuant to Section 47-7-37.

(3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years from the release of the defendant from any active period of incarceration as set out under subsection (2) of this section.

SECTION 2. Section 47-7-37, Mississippi Code of 1972, is amended as follows:

47-7-37. (1) The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. The court may fix the period of probation to the statutory maximum period which the defendant might originally have been sentenced to be imprisoned. Such period with any extension thereof shall not exceed five (5) years, except * * *~~that~~ as provided as follows:

(a) In cases of desertion and/or failure to support minor children, the period of probation may be fixed and/or extended by the court for so long as the duty to support such minor children exists;

(b) In cases where the defendant is a participant in a court-ordered program; or

(c) In cases where a defendant owes restitution and is still subject to paying such restitution. The time served on probation or post-release supervision may be reduced pursuant to Section 47-7-40.

(2) At any time during the period of probation, the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested. Any probation and parole officer may arrest a probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him or her a written statement setting forth that the probationer has, in the judgment of the probation and parole officer, violated the conditions of probation. Such written statement delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the probationer.

(3) (a) Whenever an offender is arrested on a warrant for an alleged violation of probation as herein provided, the department shall hold an informal preliminary hearing within seventy-two (72) hours of the arrest to determine whether there is reasonable cause to believe the person has violated a condition of probation. A preliminary hearing shall not be required when the offender is not under arrest on a warrant or the offender signed a waiver of a preliminary hearing. The preliminary hearing may be conducted electronically. If reasonable cause is found, the offender may be confined no more than twenty-one (21)days from the admission to detention until a revocation hearing is held. If the revocation hearing is not held within twenty-one (21) days, the probationer shall be released from custody and returned to probation status.

(b) Notwithstanding paragraph (a) of this section, a court shall not impose a sentence of a term of imprisonment in a technical violation center or restitution center upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. If a court finds by a preponderance of the evidence that the defendant committed a second technical violation and he or she cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than fourteen (14) days of imprisonment in a technical violation center or restitution center for a second technical violation. Any subsequent violations after the second violation shall be subject to the terms of imprisonment in a technical violation center or restitution center as set out in this section, unless such defendant has committed a fifth or subsequent technical violation.

(i) The defendant fails to refrain from the use, ownership, or transportation of a firearm; or

(ii) The defendant fails to maintain contact with the probation and parole officer whereby his or her whereabouts are no longer known to the probation officer.

Any such subsequent second technical violation as set out under subparagraph (i) or (ii)_of this paragraph (c) shall be considered a third or subsequent technical violation.

(d) If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of suspension, or has violated another condition other than a technical violation or a good conduct violation that did not result in a criminal conviction, the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.

(4) If a probationer or offender is subject to registration as a sex offender, the court must make a finding that the probationer or offender is not a danger to the public prior to release with or without bail. In determining the danger posed by the release of the offender or probationer, the court may consider the nature and circumstances of the violation and any new offenses charged; the offender or probationer's past and present conduct, including convictions of crimes and any record of arrests without conviction for crimes involving violence or sex crimes; any other evidence of allegations of unlawful sexual conduct or the use of violence by the offender or probationer; the offender or probationer's family ties, length of residence in the community, employment history and mental condition; the offender or probationer's history and conduct during the probation or other supervised release and any other previous supervisions, including disciplinary records of previous incarcerations; the likelihood that the offender or probationer will engage again in a criminal course of conduct; the weight of the evidence against the offender or probationer; and any other facts the court considers relevant.

(5) (a) The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Within twenty-one (21) days of arrest and detention by warrant as herein provided, the court shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence. If the court revokes probation for * * *~~one or more~~ two (2) technical violations, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * *~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(b) If the offender is not detained as a result of the warrant, the court shall cause the probationer to be brought before it within a reasonable time and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction. If the court revokes probation for one or more technical violations, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * * ~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * * ~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(c) If the court does not hold a hearing or does not take action on the violation within the twenty-one-day period, the offender shall be released from detention and shall return to probation status. The court may subsequently hold a hearing and may revoke probation or may continue probation and modify the terms and conditions of probation. If the court revokes probation for * * *~~one or more~~ two (2) technical violations, the court shall impose a period of imprisonment to be served in either a technical violation center operated by the department or a restitution center not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * * ~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(d) For an offender charged with a technical violation who has not been detained awaiting the revocation hearing, the court may hold a hearing within a reasonable time. The court may revoke probation or may continue probation and modify the terms and conditions of probation. If the court revokes probation for one or more technical violations the court shall impose a period of imprisonment to be served in either a technical violation center operated by the department or a restitution center not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * *~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(6) If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge of such court, a report concerning the probationer, and such court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward a transcript of such order to the clerk of the court of original jurisdiction, and the clerk of that court shall proceed as if the order of revocation had been issued by the court of original jurisdiction. Upon the revocation of probation or suspension of sentence of any offender, such offender shall be placed in the legal custody of the State Department of Corrections and shall be subject to the requirements thereof.

(7) Any probationer who removes himself from the State of Mississippi without permission of the court placing him on probation, or the court to which jurisdiction has been transferred, shall be deemed and considered a fugitive from justice and shall be subject to extradition as now provided by law. No part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.

(8) The arresting officer, except when a probation and parole officer, shall be allowed the same fees as now provided by law for arrest on warrant, and such fees shall be taxed against the probationer and paid as now provided by law.

(9) The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.

(10) Unless good cause for the delay is established in the record of the proceeding, the probation revocation charge shall be dismissed if the revocation hearing is not held within thirty (30) days of the warrant being issued.

(11) The Department of Corrections shall provide semiannually to the Oversight Task Force the number of warrants issued for an alleged violation of probation or post-release supervision, the average time between detention on a warrant and preliminary hearing, the average time between detention on a warrant and revocation hearing, the number of * * *~~ninety‑day~~ fourteen (14) day sentences in a technical violation center issued by the court, the number of one-hundred-twenty-day sentences in a technical violation center issued by the court, the number of one-hundred-eighty-day sentences issued by the court, and the number and average length of the suspended sentences imposed by the court in response to a violation.

SECTION 3. Section 47-7-27, Mississippi Code of 1972, is amended as follows:

47-7-27. (1) The board may, at any time and upon a showing of probable violation of parole, issue a warrant for the return of any paroled offender to the custody of the department. The warrant shall authorize all persons named therein to return the paroled offender to actual custody of the department from which he was paroled.

(2) Any field supervisor may arrest an offender without a warrant or may deputize any other person with power of arrest by giving him a written statement setting forth that the offender has, in the judgment of that field supervisor, violated the conditions of his parole or earned-release supervision. The written statement delivered with the offender by the arresting officer to the official in charge of the department facility from which the offender was released or other place of detention designated by the department shall be sufficient warrant for the detention of the offender.

(3) The field supervisor, after making an arrest, shall present to the detaining authorities a similar statement of the circumstances of violation. The field supervisor shall at once notify the board or department of the arrest and detention of the offender and shall submit a written report showing in what manner the offender has violated the conditions of parole or earned-release supervision. An offender for whose return a warrant has been issued by the board shall, after the issuance of the warrant, be deemed a fugitive from justice.

(4) Whenever an offender is arrested on a warrant for an alleged violation of parole as herein provided, the board shall hold an informal preliminary hearing within seventy-two (72) hours to determine whether there is reasonable cause to believe the person has violated a condition of parole. A preliminary hearing shall not be required when the offender is not under arrest on a warrant or the offender signed a waiver of a preliminary hearing. The preliminary hearing may be conducted electronically.

(5) The right of the State of Mississippi to extradite persons and return fugitives from justice, from other states to this state, shall not be impaired by this chapter and shall remain in full force and effect. An offender convicted of a felony committed while on parole, whether in the State of Mississippi or another state, shall immediately have his parole revoked upon presentment of a certified copy of the commitment order to the board. If an offender is on parole and the offender is convicted of a felony for a crime committed prior to the offender being placed on parole, whether in the State of Mississippi or another state, the offender may have his parole revoked upon presentment of a certified copy of the commitment order to the board.

(6) (a) The board shall hold a hearing for any parolee who is detained as a result of a warrant or a violation report within twenty-one (21) days of the parolee's admission to detention. The board may, in its discretion, terminate the parole or modify the terms and conditions thereof. If the board revokes parole for * * *~~one or more~~ two (2) technical violations, the board shall impose a period of imprisonment to be served in a technical violation center operated by the department not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * *~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * * ~~third~~ fourth revocation, the board may impose a period of imprisonment to be served in a technical violation center for up to one hundred * * *~~and~~ eighty (180) days or the board may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the board may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(b) If the board does not hold a hearing or does not take action on the violation within the twenty-one-day time frame in paragraph (a) of this subsection, the parolee shall be released from detention and shall return to parole status. The board may subsequently hold a hearing and may revoke parole or may continue parole and modify the terms and conditions of parole. If the board revokes parole for * * *~~one or more~~ two (2) technical violations, the board shall impose a period of imprisonment to be served in a technical violation center operated by the department not to exceed * * *~~ninety (90)~~ fourteen (14) days for the * * *~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the board may impose a period of imprisonment to be served in a technical violation center for up to one hundred eighty (180) days or the board may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the board may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(c) For a parolee charged with one or more technical violations who has not been detained awaiting the revocation hearing, the board may hold a hearing within a reasonable time. The board may revoke parole or may continue parole and modify the terms and conditions of parole. If the board revokes parole for * * *~~one or more~~ two (2) technical violations, the board shall impose a period of imprisonment to be served in a technical violation center operated by the department not to exceed * * * ~~ninety (90)~~ fourteen (14) days for the * * *~~first~~ second revocation and not to exceed one hundred twenty (120) days for the * * *~~second~~ third revocation. For the * * *~~third~~ fourth revocation, the board may impose a period of imprisonment to be served in a technical violation center for up to one hundred eighty (180) days or the board may impose the remainder of the suspended portion of the sentence. For the * * *~~fourth~~ fifth and any subsequent revocation, the board may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(7) Unless good cause for the delay is established in the record of the proceeding, the parole revocation charge shall be dismissed if the revocation hearing is not held within the thirty (30) days of the issuance of the warrant.

(8) The chairman and each member of the board and the designated parole revocation hearing officer may, in the discharge of their duties, administer oaths, summon and examine witnesses, and take other steps as may be necessary to ascertain the truth of any matter about which they have the right to inquire.

(9) The board shall provide semiannually to the Oversight Task Force the number of warrants issued for an alleged violation of parole, the average time between detention on a warrant and preliminary hearing, the average time between detention on a warrant and revocation hearing, the number of * * *~~ninety‑day~~ fourteen (14) day sentences in a technical violation center issued by the board, the number of one-hundred-twenty-day sentences in a technical violation center issued by the board, the number of one-hundred-eighty-day sentences issued by the board, and the number and average length of the suspended sentences imposed by the board in response to a violation.

SECTION 4. This section shall take effect and be in force from and after July 1, 2023.