§ 1.20. Violation of Probation; Revocation; Modification; Continuance; Failure to Pay Restitution or Cost of Supervision.

(1)

Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation, any probation supervisor may arrest such probationer without warrant wherever found and shall forthwith return him to the court granting such probation. Any committing magistrate may issue a warrant, upon the facts being made known to him by affidavit of one having knowledge of such facts, for the arrest of the probationer, returnable forthwith before the court granting such probation. Any probation supervisor, any officer authorized to serve criminal process, or any peace officer of this state is authorized to serve and execute such warrant. The court, upon the probationer being brought before it, shall advise him of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or continue the probation. If probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation. If such violation of probation is not admitted by the probationer, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of probation. If such charge is not at that time admitted by the probationer and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation. If such probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation.

(2)

No part of the time that the defendant is on probation shall be considered as any part of the time that he shall be sentenced to serve.

(3)

Notwithstanding any other provision of this section, a probationer who is arrested for violating his probation may be taken before the court in the county in which he was arrested. That court shall advise him of such charge of a violation and, if such charge is admitted, shall cause him to be brought before the court which granted the probation. If such violation is not admitted by the probationer, the court may commit him or release him with or without bail to await further hearing. The court, as soon as is practicable, shall give the probationer an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court shall make findings of fact and forward the findings to the court which granted the probation and to the probationer or his attorney. The findings of fact by the hearing court are binding on the court which granted the probation. Upon the probationer being brought before it, the court which granted the probation may revoke, modify, or continue the probation.

(4)

In any hearing in which the failure of a probationer to pay restitution or the cost of supervision, as directed, is established by the City, if the probationer asserts his inability to pay restitution or the cost of supervision, it is incumbent upon him to prove by clear and convincing evidence that he does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. If the probationer cannot pay restitution or the cost of supervision despite sufficient bona fide efforts, the court shall consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the City's interests in punishment and deterrence may the court imprison a probationer who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision.

(Ord. of 3-16-1987, Doc. #21038)