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HENTOFF LAW OFFICE 25560 W. Highway 85, Suite 26 Buckeye, Arizona 85326 (602) 257-1776

HENTOFF LAW OFFICE

(602) 257-1776
WWW.HENTOFFLAW.COM

25560 W. Highway 85, Suite 26 Phoenix, Arizona 85326

Nicholas S. Hentoff - 012492 Attorney for Defendant IN THE MARICOPA COUNTY SUPERIOR COURT IN AND FOR THE STATE OF ARIZONA STATE OF ARIZONA, Plaintiff, v. MICHAEL ROBERT SOUTAR, Defendant. Case No.: CR9809153 MOTION TO DISMISS PETITION TO REVOKE PROBATION AND TO TERMINATE PROBATION

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Michael Robert Soutar, by and through undersigned counsel, respectfully requests that this Court dismiss the pending Petition to Revoke Probation and Terminate Probation on the grounds that the two year delay in holding a probation revocation hearing violates Mr. Soutars rights to Due Process under both the Arizona State and United State Constitutions. This Motion is supported by the accompanying Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS On June 30th, 1999, the Honorable Peter Reinstein sentenced Mr. Soutar to a period of probation and imprisonment on Count 1, Attempted Forgery, a Class Five Felony and to Count 2, Theft, a Class Three Felony. Mr. Soutar was sentenced to a term of 1.5 years in the Arizona

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HENTOFF LAW OFFICE 2415 E. Camelback, Suite 700 Phoenix, Arizona 85016 (602) 257-1776

Department of Corrections on Count 1 and to a period of probation for five years on Count 2, commencing on Mr. Soutars release from prison on Count 1. Restitution in the amount of $46, 661.84 was ordered on both counts. See Exhibit A, Minute Entry Order Dated July 3, 1999; Exhibit B, Memo to the Court dated March 26th, 2002; and Minute Entry order dated April 4th 2004. On June 12th Judge James Paddish signed an Order modifying the terms of Mr. Soutars probation to allow him to participate in Interstate Compact Program and be supervised on probation in New Mexico. See Exhibit D. On September 13th 2004 a Petition to Revoke Probation was filed alleging that Mr. Soutar violated the terms of his probation by committing a new offense in New Mexico, among other violations of the terms and conditions of his probation. See Exhibit E. On September 15th, 2004, a Bench Warrant was issued by the Clerk of the Court. Upon information and belief, Mr. Soutar was arrested on this warrant in Boston, Massachusetts, shortly after it was issued. However, Arizona declined to initiate extradition proceedings, instead placing a detainer on Mr. Soutar after he was transported back to New Mexico to face pending criminal charges. Mr. Soutar, who would have been eligible for a release bond on the New Mexico charges but for the Arizona warrant, has been incarcerated on Arizonas detainer hold for most of the past two years. II. LAW A person whose probation is subject to revocation is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments and is entitled to a revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). The hearing must be held within a reasonable time. See id.; Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct.

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HENTOFF LAW OFFICE 2415 E. Camelback, Suite 700 Phoenix, Arizona 85016 (602) 257-1776

2593, 2602, 33 L.Ed.2d 484 (1972). Federal courts have held that revocation of probation after unreasonable delay is an abuse of discretion. See, e.g., United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983) (threeyear delay unreasonable); United States v. Tyler, 605 F.2d 851 (5th Cir.1979) (delay of one year in seeking revocation for misdemeanor charges deprived probationer of right to due process). See also U.S. v. Hunt, 990 F.2d 1263 (9th Cir. 1993); C.P.M. v. D'Ilio, 916 F.Supp. 415 (D.N.J.,1996). The purpose of providing a timely hearing is to hold the proceeding while information is fresh and sources are available. Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. Arizona courts have also consistently recognized that Gagnon and Morrissey protect the defendant's right to due process in the context of probation revocation proceedings. See State v. Flemming, 184 Ariz. 110, 907 P.2d 496 (1995); State v. Adler, 189 Ariz. 280, 942 P.2d 439 (Ariz. 1997); State v. Flowers, 159 Ariz. 469, 471, 768 P.2d. 210, 203 (App. 1989); State v. Reidhead, 152 Ariz. 231, 234, 731 P.2d. 126, 129 (App. 1986); State v. Gray, 115 Ariz. 150, 152, 564 P.2d. 101, 103 (1977). In State v. Flemming, the Arizona Supreme Court held that in evaluating the reasonableness of the delay, courts have focused on three factors: length of the delay, reasons for the delay, and prejudice to the defendant. Fleming, 907 P.2d at 501. This approach was reaffirmed by the Arizona Supreme Court in State v. Adler, 189 Ariz. 280, 942 P.2d 439 (Ariz.1997). Courts in other states have recognized that a trial court may lose the power to conduct a probation violation hearing if it does not proceed within a reasonable time. See, e.g., People v. Williams, 10 Ill.App. 3d. 428, 294 N.E.2d. 61,63 (1973). In State v. Rome, 392 So.2d. 407, 410 (La. 1980), the Supreme Court of Louisiana held that "[w]here the state can execute a warrant timely but makes no attempt to do so, the running of the probationary period is not suspended, and a subsequent untimely revocation will be declared illegal. " State v. Rome, 392 So.2d. 407,

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HENTOFF LAW OFFICE 2415 E. Camelback, Suite 700 Phoenix, Arizona 85016 (602) 257-1776

410 (La. 1980). In addition, Rule 27.10 (B) (1) of the Arizona Rules of Criminal Procedure provides for the revocation of probation in abstentia.1 During the two years since the Petition to Revoke was filed in this case, Maricopa County made absolutely no effort to either initiate extradition proceedings based on its detainer hold or to conduct the revocation hearing in abstentia, preferring instead to let Mr. Soutar rot in a New Mexico jail as his due process rights slipped away with each passing day. Mr. Soutar has now lost the opportunity to have the time on his New Mexico charges run concurrent with the time he may receive upon revocation of probation in his Arizona case. Mr. Soutar has therefore been prejudiced by the inexcusable delay in holding his probation revocation hearing and the Petition should therefore be dismissed and his probation in this case terminated. RSPECTFULLY SUBMITTED September 21st, 2006

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Nicholas S. Hentoff Attorney for Mr. Soutar Copy of the foregoing hand delivered on September 21st 2006 to: Maricopa County Attorneys Office 301 W. Jefferson Street Phoenix Arizona 85003

If the supervising probation officer has reasonable cause to believe that a probationer has violated a written condition or regulation of probation, the probation officer or the prosecutor of the court of jurisdiction in which the probationer is being supervised may petition the court to revoke probation in absentia.

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