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the juvenile probation officer serves for adults with no extra compensation.o

Appointment is by the judge of the superior court and service is at his pleasure. If there are criminal divisions of the court, such judges make the appointment." Expenses are a charge on the county.10

The only county in Arizona which has used the authority to have an adult probation office is Maricopa, of which Phoenix is the county seat. Maricopa county has two divisions of the superior court devoted to criminal business and has two full time probation officers.

Procedure.-After conviction by plea of guilty or verdict, where discretion is conferred as to the extent of punishment, the court has the power to place the defendant on probation in the following manner: First, imposition of sentence may be suspended and the defendant released under probation for a term not exceeding the maximum sentence provided by law; second, if the sentence is a fine with the alternative of a jail sentence if the fine is not paid, after imposing sentence the court may suspend the execution of imprisonment, to the end that the defendant may be placed on probation in order to pay the fine. Under this statute there can be no suspension of a sentence of imprisonment, but only the suspension of the imposition of the sentence.12 Where the sentence is a fine or alternative imprisonment for a specific term, the latter can be suspended, but where the sentence is fine and imprisonment, there can be no suspension of the imprisonment.13 Suspension of sentence can be exercised only in accordance with the statutes. Where a sentence is a fine only which carried no alternative imprisonment and thus could be enforced by civil action only, it is improper to place the defendant on probation under the condition that if the fine were not paid, probation could be revoked and the defendant imprisoned.11

Ariz. Rev. Code Ann. (Courtright, Supp. 1936) § 5106. s Ibid.

Ariz. Rev. Code. Ann. (Courtright, Supp. 1936) § 5106. 10 Id. 5107.

" Id. (Struckmeyer, 1928) § 5105.

12 State v. McKelvey, 30 Ariz. 265, 246 Pac. 550 (1926).

13 Silver v. State, 37 Ariz. 418, 295 Pac. 311 (1931). Smith v. State, 37 Ariz. 262, 293 Pac. 23 (1930).

Investigation to determine eligibility.-In Maricopa County, which has the only separate adult probation staff, the judges of the two departments of the superior court handling criminal cases follow the practice of requesting presentence investigations in nearly every case. The investigations usually include an interview with the defendant, the inquiry as to his criminal record, interviews with the complaining witness and with the prosecutor handling the case, and where time is sufficient or it is of particular importance in a case, interviews with the family, employer and acquaintances of the defendant. Schedules are filled out for every person convicted and call for information about the crime, the outcome of the prosecution, the physical characteristics of the defendant, his past criminal record, his military record, his family history and the procedural history of the present case.

Reports of presentence investigations are made orally. The probation officers recognize the desirability of written reports, but the judges prefer informal oral reports, and as the department is furnished no clerical staff, it becomes virtually impossible to present any comprehensive written report. A day or two before the case is set for sentence, the probation officer confers with the judge and relates the results of his investigation and together they discuss the action to be taken in regard to the sentence. During the year 1935 there were 326 defendants convicted of criminal offenses in Maricopa County, of which 110 were placed on probation.15

Pima County, of which Tuscon is the county seat, has one adult probation officer, but since he is also the only juvenile probation officer, his major activities are devoted to the juvenile cases. The result is that there is no time for presentence investigations in adult cases. There was only one such investigation made in the year 1935 and first half of 1936, although there were approximately 120 convictions in the superior court during this same period.

In some counties recommendations concerning the sentence to be imposed are made to the court by the county

15 From statistics prepared by the Probation Office for the U. S. Census Bureau.

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.

10 Id. § 5105. 20 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.2

23

Modification, revocation, and termination of probation.— The court has the power of modifying at any time the conditions of probation.24 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.

25 Ibid.

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.20 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 he granted expires, the court has no jurisdiction over the

26 Ibid.

Ibid. Ibid.

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