16 Apr 2018
- By Bryan Manabat – [email protected] – Variety News Staff
SUPERIOR Court Judge Kenneth L. Govendo has dismissed the government’s petition to revoke the probation of a drug offender who was in jail for nine months, holding that the court lacks jurisdiction over the subject matter.
In granting Jeffrey T. Deleon Guerrero’s motion to dismiss, the judge noted that the probation had expired prior to the government’s filing of the petition.
Moreover, the judge said, a nine-month delay in the filing of the petition to revoke probation is a violation of the defendant’s due process.
According to the judge, a judgment and commitment order or JCO should specify the date and time that probation is to begin.
“If the plea agreement and the JCO fail to specify when probation begins, then a court may find that probation began at the time of sentencing,” the judge added.
On Aug. 31, 2011, Deleon Guerrero was found guilty of attempted aggravated assault and battery. Deleon Guerrero was sentenced to five years in jail but all suspended except for 11 months. He was placed on probation for five years. On June 26, 2012 he was released from the Department of Corrections.
On Nov. 28, 2017, the Attorney General’s Office filed a petition to revoke probation, alleging that Deleon Guerrero had a balance of $400 on his probation fee and had not made any payments toward his $500 fine; and that he failed to obey all laws of the CNMI. He has since been arrested twice since his release for the first crime.
Deleon Guerrero’s counsel, Assistant Public Defender Nancy Dominski, asked the court to dismiss the probation revocation for two reasons: lack of jurisdiction and violation of the defendant’s due process rights.
Dominski said Deleon Guerrero’s JCO did not specify that his probation would begin after he was released from prison.
Deleon Guerrero was ordered to be placed on probation for five years.
Dominksi said Deleon Guerrero’s probation began on the day of sentencing, Aug. 31, 2011, and ended on Aug. 30, 2016.
On Dec. 26, 2016, Deleon Guerrero for trafficking of controlled substance and illegal possession of a controlled substance. He was released and re-arrested on Jan. 25, 2017. He had remained in government custody since Jan. 25, 2017.
On Feb. 6, 2017, the Office of Adult Probation filed an affidavit of probation suspended sentence violations signed on Jan. 6, 2017.
On Nov. 28, 2017, the commonwealth filed a petition to revoke probation.
Judge Govendo agrees with the defense counsel that the petition to revoke probation should be dismissed as the process violated the defendant’s due process.
“This court holds the CNMI to a high standard when it leaves a defendant sitting in jail waiting on an affidavit or petition to revoke probation,” the judge said.
Dominski said Deleon Guerrero was in custody for over nine months after the filing of the affidavit.
“Therefore, the hearing before the judge to determine whether there is probable cause to hold the probationer for a revocation hearing was neither ‘prompt’ nor ‘within a reasonable time,’” she said.
At the hearing on April 10, 2018, Assistant Attorney General Chester Hinds appeared for the government.
Source: Marianas Variety : http://www.mvariety.com/cnmi/cnmi-news/local/103702-judge-dismisses-probation-revocation-petition