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attorney, and in support of them information that he has obtained during his investigation and prosecution of the case is made available to the court.

Persons eligible for probation.-The only limit to the eligibility of defendants for probation is that discretion as to the extent of the punishment must lie in the court.16 This means the court may grant probation except after conviction of a crime for which the jury fixes the punishment, such as first-degree murder 17 and trainwrecking.18 The court may place the defendant on probation if "there are circumstances in mitigation * or the ends of justice will be subserved thereby." 19

While probation may be granted for nearly every offense in Arizona and instances of a grant of probation will probably be found for almost every offense but murder, sentence is suspended most frequently in cases of young offenders and in cases of those defendants who have had no previous records. Different judges follow varying practices in the use of probation. One judge does not like to grant probation in cases of auto theft. Most of the judges do not consider granting probation in cases of armed robbery. On the whole, the judges do not follow any set practices but are more inclined to reach their determination according to the facts and circumstances surrounding each individual case. Usually, in addition to the fact of the particular offense and the criminal record of the defendant, they consider his general reputation and character and particularly his mental attitude.

Terms and conditions of probation.-The statutes do not specify any terms and conditions upon which probation must be granted. Instead, it is left entirely in the discretion of the court to fix "such terms and conditions as it shall determine." 20 Except for the payment of a fine, which is a sentence rather than a condition of probation, the usual conditions imposed are to abstain from the use of alcoholic liquor, to avoid evil associates, and to obey the laws and instructions of the probation officer.

16 Ariz Rev. Code Ann. (Struckmeyer, 1928) § 5105.

17 Id. § 4285.

18 Id. 4732. 19 Id. § 5105. 30 Id. § 5105.

The probationer remains under the power of the judge and under the supervision of the probation officer during the period of the suspension of imposition of sentence.21

Imposition of sentence may be suspended for as long as the maximum term provided for the offense.22 However, the supreme court has held that suspension of imposition of sentence on probation for 5 years for nonsupport of child was in excess of jurisdiction as to the period after the child came of age, even though 5 years is the allowable sentence for such offense.23

24

Modification, revocation, and termination of probation.— The court has the power of modifying at any time the conditions of probation. The court may even terminate the period of probation and discharge the defendant before the original term set has expired.25 This gives the court and the probation officers complete control over the probationer. Occasionally where the progress of the probationer has been very marked, the probation may be terminated and the probationer discharged. Usually action favorable to the probationer takes the form of requiring him to make less frequent reports or of eliminating certain conditions originally imposed.

The threat of revocation is probably most frequently used in those cases in which the probationer is not living up to the terms of his probation. Noncompliance with conditions of probation alone, while technically a violation, is seldom felt to be sufficient ground for the revocation of probation and the imposition of a prison sentence. The threat to revoke or to impose more stringent conditions is usually employed in such cases. Very frequently the probationer will use intoxicating liquor or conduct himself in some other way which does not amount to criminal conduct but which, nevertheless, indicates a lack of appreciation of the seriousness of his status as a probationer. In such cases the probationer may be brought to the probation office and there lectured about his conduct with the threat of more serious

21 Ibid.

22 Ibid.

23 Redewill v. Superior Court, 43 Ariz. 68, 29 P. (2d) 475 (1934).

24 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105.

action should it be repeated, or he may be arrested and placed in jail. If the officer and the court feel that some punishment is necessary the latter procedure is usually followed. After the defendant is incarcerated on the charge of a violation the hearing on the alleged violation will be continued for a period of time. During this time the defendant remains in jail where he not only receives a taste of this form of punishment but is uncertain as to what the outcome of his trouble will be. When the court and probation officer feel that the defendant has been sufficiently impressed with the seriousness of his conduct, they may then release him again on the original terms of the probation. Usually such periods of incarceration will not exceed 2 weeks, or at the most not more than a month.

At any time during the probationer's term any probation officer may without a warrant or other process rearrest any probationer under his care and bring him before the court.26 The court, if it has reason to believe that the person placed on probation has violated the conditions of his probation, or has engaged in criminal acts, or has formed improper associations or has been leading a vicious life, may pronounce judgment upon the defendant.27 This action is seldom used for minor violations of conditions of probation, but is nearly always resorted to where the probationer has been guilty of another crime. While the statute requires that a violator be brought before the court and implies, therefore, that there must be some sort of a hearing on the alleged violation, it is clear that all that is legally necessary for the court to revoke the probation, is sound reason to believe that the probationer has violated the conditions of his probation.

Termination.-If the court has not seen fit to revoke the order of probation or impose sentence or pronounce judgment before the end of the term of probation, then after the term expires the defendant is discharged.28 It has been held. that when the maximum term for which probation could be granted expires, the court has no jurisdiction over the

28 Ibid.

27 Ibid.

2 Ibid.

defendant, unless it has, previous to that time, revoked the probation and imposed judgment.29 As judgment cannot be imposed in a felony case unless the defendant is present,30 this might mean that a defendant who violated his probation and who avoided being brought before the court until the total term had expired, could not thereafter be held.

Probation officers: Appointment and qualifications.— Complete authority for appointment of probation officers lies in the court. 31 In Maricopa County, the two judges presiding over criminal divisions make the appointments of the two adult probation officers. There are no statutory qualifications or restrictions on this appointive power, as there are in the selection of a juvenile probation officer.32

The adult probation officer serves at the pleasure of the judge 33 and his salary is fixed by the judge, not to exceed $200 a month.84

Probation officers: Powers and duties.-The duties of the adult probation officer are:

To keep records and reports of all persons placed under suspended sentence and the conditions of such suspension; Supervise all persons under suspended sentence;

Serve warrants and make arrests in matters of suspended sentence;

Receive and disburse moneys paid under provisions of suspended sentence;

Investigate cases referred by court;

Keep informed on conduct of probationers and bring de faulters into court.35

This report blank calls for information of the following type: The residence of the probationer, the kind of employment he is engaged in, the employer, his earnings, whether he has received medical treatment, what he does with his leisure time, his fraternal affiliations, his attendance at religious services, a statement as to any trouble he may

20 Ex parte Keene, 47 Ariz. 195, 54 P. (2d) 791 (1936).

30 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5102.

31 Id. (Courtright, Supp. 1936) § 5106.

82 The chief probation officer attached to the juvenile court is selected by competitive examination. Id. § 1930.

85 Id. § 5106.

34 Id. § 5107. 35 Id. § 5108.

have had, and a request for suggestions as to how the probation officer may be of assistance. A kardex record is kept for each probationer on which is checked the dates on which the probationer reports and a brief summary of the case and conditions of probation. The advantage of this latter type of record is its quick and convenient availability for reference when the probationer comes into the office. On these forms is also kept a record of any payments of money made by the probationer for purposes of restitution or support.

In Maricopa county the probationers at first are usually required to report in person weekly; this is later modified to twice a month.

Probation officers: Duty of supervision.-The adult probation officer is charged with the general supervision and observation of all persons under suspended sentence, subject to the will and direction of the court.30 He is to keep informed regarding the conduct of every person placed under suspended sentence and report the same to the court.37 One condition of probation which is always imposed is the requirement that the defendant report to the probation officer at certain stated intervals, weekly, biweekly, or monthly. It is through such reports that the probation officers primarily keep informed regarding the conduct of their probationers.

In Maricopa county, a regular printed form is provided which is filled out and signed by the probationer and filed with the probation officer each month.

In Pima County, because of the limited time and energy that can be devoted to adult cases by the single probation officer, only a summary kardex record 38 is kept on each probationer, and no other report forms are used. This record is checked at the time of the visit of probationer. The usual requirement for reporting in Pima County is once a month.

In all instances where the probationer resides outside of the vicinity of the county seat or outside of the jurisdiction of the court his reports are made monthly by mail. These

* Ibid.

Ibid.

This is the same card used in Federal probation offices.

73115-39-VOL, I-6

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