§ 46-18-203 — Revocation Of Suspended Or Deferred Sentence

46-18-203 . Revocation of suspended or deferred sentence. (1) On the filing of a petition for revocation showing probable cause that the offender has violated any condition of a sentence, any condition of a deferred imposition of sentence, or any condition of supervision after release from imprisonment imposed pursuant to 45-5-503 (4), 45-5-507 (5), 45-5-601 (3), 45-5-625 (4), or 45-5-711 , the judge may issue an order for a hearing on revocation. The order must require the offender to appear at a specified time and place for the hearing and be served by delivering a copy of the petition and order to the offender personally. The judge may also issue an arrest warrant directing any peace officer or a probation and parole officer to arrest the offender and bring the offender before the court.
(2) The petition for a revocation must be filed with the sentencing court or with a court as provided in subsection (3) either before the period of suspension or deferral has begun or during the period of suspension or deferral but not after the period has expired. Expiration of the period of suspension or deferral after the petition is filed does not deprive the court of its jurisdiction to rule on the petition.
(3) A county attorney in a county where the defendant is alleged to have committed a new felony offense may petition the sentencing court in a county where the defendant was sentenced to a suspended or deferred sentence in a prior felony conviction to transfer the matter to the county where the new felony is alleged to have been committed for revocation of the prior suspended or deferred sentence. The petition must be served on the county attorney in the original sentencing county, the sentencing judge in the sentencing jurisdiction of the prior felony conviction, any victims, and the defendant.
(4) The provisions pertaining to bail, as set forth in Title 46, chapter 9, are applicable to persons arrested pursuant to this section.
(5) Without unnecessary delay and no more than 60 days after arrest, the offender must be brought before the judge, and at least 10 days prior to the hearing the offender must be advised of:
(a) the allegations of the petition;
(b) the opportunity to appear and to present evidence in the offender's own behalf;
(c) the opportunity to question adverse witnesses; and
(d) the right to be represented by counsel at the revocation hearing pursuant to Title 46, chapter 8, part 1.
(6) A hearing is required before a suspended or deferred sentence can be revoked or the terms or conditions of the sentence can be modified unless:
(a) the offender admits the allegations and waives the right to a hearing; or
(b) the sentencing court, the probationer, or the county attorney in the sentencing jurisdiction has not objected to the removal of a condition of supervision pursuant to 46-23-1011 and the department of corrections notifies the victim of the change, using any available contact information at the time the other parties are notified; or
(c) the relief to be granted is favorable to the offender and the prosecutor, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of probation is not favorable to the offender for the purposes of this subsection (6)(c).
(7) (a) At the hearing, the prosecution shall prove, by a preponderance of the evidence, that there has been a violation of:
(i) the terms and conditions of the suspended or deferred sentence; or
(ii) a condition of supervision after release from imprisonment imposed pursuant to 45-5-503 (4), 45-5-507 (5), 45-5-601 (3), 45-5-625 (4), or 45-5-711 .
(b) However, when a failure to pay restitution is the basis for the petition, the offender may excuse the violation by showing sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender's part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered.
(8) (a) If the judge finds that the offender has violated the terms and conditions of the suspended or deferred sentence by committing either a compliance violation or a noncompliance violation, or both, the judge may:
(i) continue the suspended or deferred sentence without a change in conditions;
(ii) continue the suspended sentence with modified or additional terms and conditions, which may include placement in:
(A) a secure facility designated by the department for up to 9 months; or
(B) a community corrections facility or program designated by the department for up to 9 months, including but not limited to placement in a prerelease center, sanction or hold bed, transitional living program, enhanced supervision program, relapse intervention bed, chemical dependency treatment, or 24/7 sobriety program;
(iii) revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence. A sentence imposed upon revocation must run consecutively to any other previously existing sentence unless the suspended or deferred sentence that is being revoked ran concurrently to the previously existing sentence.
(iv) if the sentence was deferred, impose any sentence that might have been originally imposed.
(b) If a suspended or deferred sentence is revoked, the judge shall:
(i) consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. A district court, in its discretion, may deny elapsed time credit for a reasonable period of time related to a violation or multiple violations. A defendant is not entitled to elapsed time credit for time spent in a correctional institution as defined in 45-2-101 . If the judge determines that elapsed time may not be credited, the judge shall state the reasons for the determination in the order.
(ii) allow credit for each day of incarceration or home arrest prior to imposition of a revocation sentence that is directly related to the revocation proceedings pursuant to the limitations in 46-18-403 (1)(b).
(c) If the judge finds that the offender has not violated a term or condition of a suspended or deferred sentence, the judge is not prevented from setting, modifying, or adding conditions of probation as provided in 46-23-1011 .
(9) If the judge finds that the prosecution has not proved, by a preponderance of the evidence, that there has been a violation of the terms and conditions of the suspended or deferred sentence, the petition must be dismissed and the offender, if in custody, must be immediately released.
(10) All sanction and placement decisions must be documented in the offender's file.
(11) As used in this section:
(a) "absconding" means when an offender deliberately makes the offender's whereabouts unknown to a probation and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts by the probation and parole officer to locate the offender have been unsuccessful; and
(b) "compliance violation" means a violation of the conditions of supervision that is not:
(i) a new criminal offense;
(ii) possession of a firearm in violation of a condition of probation;
(iii) behavior by the offender or any person acting at the offender's direction that could be considered stalking, harassing, or threatening the victim of the offense or a member of the victim's immediate family or support network;
(iv) absconding; or
(v) failure to enroll in or complete a required sex offender treatment program or a treatment program designed to treat violent offenders.
(12) The provisions of this section apply to any offender whose suspended or deferred sentence is subject to revocation regardless of the date of the offender's conviction and regardless of the terms and conditions of the offender's original sentence.
(13) A filing fee of $120 must be filed with a petition for revocation when a transfer of jurisdiction is requested.

Legislative History

En. 95-2206 by Sec. 1, Ch. 196, L. 1967; rep. and re-en. by Sec. 31, Ch. 513, L. 1973; amd. Sec. 36, Ch. 184, L. 1977; amd. Sec. 1, Ch. 436, L. 1977; amd. Sec. 1, Ch. 580, L. 1977; amd. Sec. 12, Ch. 584, L. 1977; R.C.M. 1947, 95-2206(5); amd. Sec. 1, Ch. 328, L. 1981; amd. Sec. 1, Ch. 204, L. 1983; amd. Sec. 1, Ch. 262, L. 1991; amd. Sec. 224, Ch. 800, L. 1991; amd. Sec. 45, Ch. 262, L. 1993; amd. Sec. 5, Ch. 52, L. 1999; amd. Sec. 2, Ch. 493, L. 2001; amd. Sec. 1, Ch. 345, L. 2003; amd. Sec. 1, Ch. 386, L. 2003; amd. Sec. 15, Ch. 483, L. 2007; amd. Sec. 1, Ch. 230, L. 2011; amd. Sec. 10, Ch. 374, L. 2013; amd. Sec. 19, Ch. 285, L. 2015; amd. Sec. 13, Ch. 390, L. 2017; amd. Sec. 1, Ch. 391, L. 2017; amd. Sec. 26, Ch. 167, L. 2023; amd. Sec. 1, Ch. 530, L. 2023; amd. Sec. 1, Ch. 324, L. 2025; amd. Sec. 1, Ch. 356, L. 2025; amd. Sec. 2, Ch. 498, L. 2025; amd. Sec. 1, Ch. 624, L. 2025.