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  #101  
Old 10-22-2010, 08:57 AM
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Here is some caselaw about probation revocation rules:

Court of Appeal of Louisiana, Fifth Circuit. STATE of Louisiana
v.
Rickey KRUMMEL (Rickey J. Krummel).



No. 91-KA-672.
Jan. 31, 1992.
Writ Denied May 1, 1992.

Defendant appealed from order of the Twenty-Fourth Judicial District Court, Jefferson Parish, Clarence E. McManus, J., revoking his probation. The Court of Appeal, Bowes, J., held that probation revocation proceedings were invalid, where rules to revoke were neither supported by affidavit nor executed under oath.

Ruling annulled; remanded.


West Headnotes


[1] KeyCite Citing References for this Headnote

350H Sentencing and Punishment
350HIX Probation and Related Dispositions
350HIX(I) Revocation
350HIX(I)3 Proceedings
350Hk2012 k. Arrest or Apprehension of Probationer. Most Cited Cases
(Formerly 110k982.9(4))

Probation revocation proceeding may be instituted by summons or arrest warrant. LSA-C.Cr.P. art. 899, subd. A.

[2] KeyCite Citing References for this Headnote

350H Sentencing and Punishment
350HIX Probation and Related Dispositions
350HIX(I) Revocation
350HIX(I)3 Proceedings
350Hk2012 k. Arrest or Apprehension of Probationer. Most Cited Cases
(Formerly 110k982.9(4))

Summons or arrest warrant used to institute probation revocation proceeding must be supported by affidavit executed under oath by complainant; absent such affidavit, summons or warrant is improperly issued, and probation proceeding is invalid. LSA-C.Cr.P. arts. 202, 385, 899, subd. A.

[3] KeyCite Citing References for this Headnote

350H Sentencing and Punishment
350HIX Probation and Related Dispositions
350HIX(I) Revocation
350HIX(I)3 Proceedings
350Hk2012 k. Arrest or Apprehension of Probationer. Most Cited Cases
(Formerly 110k982.9(4))

Probation revocation proceedings, instituted against defendant with rules to revoke probation filed by defendant's probation officer, were invalid, where rules to revoke, which are equivalent to summons, were neither supported by affidavit nor executed under oath. LSA-C.Cr.P. arts. 202, 385, 899, subd. A.

[4] KeyCite Citing References for this Headnote

110 Criminal Law
110XXIV Review
110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review
110XXIV(E)1 In General
110k1042.3 Sentencing and Punishment
110k1042.3(4) k. Probation and Related Dispositions. Most Cited Cases
(Formerly 110k1042)

Defendant did not waive his right to challenge validity of probation revocation proceedings based on institution of proceedings without affidavit or oath supporting rules to revoke by failing to raise issue in trial court.

*1368 John D. Rawls, Gretna, for defendant/appellant.

Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for plaintiff/appellee.

*1369 Before BOWES, GAUDIN and WICKER, JJ.



BOWES, Judge.


Defendant, Rickey Krummel, challenges the legality of his two-year sentence for theft, made executory after the trial court ordered that his probation be revoked for failure to comply with the conditions imposed. We annul and set aside the probation revocation and remand the case for further proceedings.

The defendant pled guilty to theft in an amount over $100 but less than $500 in violation of LSA-R.S. 14:67 and was sentenced to two years, suspended, and two years active probation. Pursuant to a rule to revoke filed by the State, and after a hearing, defendant's probationary period was extended for an additional year. While on probation during the additional year, defendant pled guilty to forcible rape and was sentenced to five years at hard labor. The State filed a second rule to revoke defendant's probation for failure to comply with condition No. 1 of his probation, which was to refrain from criminal conduct. After a hearing on the rule, the trial court ordered that the defendant's probation be revoked and that his two year sentence be made executory, to be served consecutively to his sentence for forcible rape.

Defendant filed an application for writ of review from the revocation of probation with this Court. We granted a writ of review and ordered that the matter be lodged as an appeal.

In this appeal, the defendant requests that his two-year sentence for theft be amended to reflect credit for time served. Defendant further raises several challenges to the legality of both the revocation proceedings and the sentence imposed as a result of revoking his probation.

[1] [2] A probation revocation proceeding may be instituted by a summons or an arrest warrant. La.C.Cr.P. art. 899A; State v. Forest, 571 So.2d 893 (La.App. 5 Cir.1990). The summons or warrant must be supported by an affidavit executed under oath by the complainant. Absent such an affidavit, the summons or warrant is improperly issued, La.C.Cr.P. arts. 202 and 385, and the probation proceeding is invalid. State v. Forest, supra; State v. Armour, 564 So.2d 360 (La.App. 5 Cir.1990), writ denied, 569 So.2d 961 (La.1990). The courts have also recognized that a rule to revoke is equivalent to a summons. State v. Broussard, 408 So.2d 909 (La.1981); State v. Dassau, 534 So.2d 467 (La.App. 5 Cir.1988).

[3] In this case, probation revocation proceedings against the defendant were instituted on November 4, 1987, and again on October 28, 1988. As a consequence of the proceeding undertaken on November, 1987, the trial court extended the defendant's probationary period for one year. The second proceeding (October 28, 1988) resulted in the revocation of the defendant's probation and the execution of the suspended sentence which the defendant is now serving. Both of these proceedings were initiated with rules to revoke probation filed by the defendant's probation officer. However, these rules to revoke were neither supported by an affidavit nor executed under oath. Therefore, the probation revocation proceedings instituted against the defendant on November 4, 1987 and October 28, 1988 were invalid and it is mandatory that they be annulled and set aside. We have pointed this out on several prior occasions. See authorities, infra.

[4] In brief, the State argues that the defendant waived his objection to the validity of the revocation proceedings by raising the challenge for the first time on appeal. However, this Court has previously noted and resolved revocation validity issues of this type on error patent review, absent a prior challenge by the defendant. State v. Forest, supra; State v. Armour, supra; State v. Davis, 562 So.2d 936 (La.App. 5 Cir.1990), writ denied, *1370 568 So.2d 1060 (La.1990). Accordingly, defendant did not waive his right to challenge the validity of the probation revocation proceedings by failing to raise same in the trial court.

Because we find that the revocation proceedings must, manditorily, be annulled and set aside, we need not address the remaining issues raised by the defendant.

For the above reasons, the ruling revoking defendant's probation is annulled and set aside and the case is remanded for further proceedings.

PROBATION REVOCATION ANNULLED, AND SET ASIDE; CASE REMANDED.

La.App. 5 Cir.,1992.
State v. Krummel
593 So.2d 1368
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  #102  
Old 10-23-2010, 12:17 AM
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Originally Posted by DoingTimeinLove View Post
Seems like a common problem for all of us is calculating time whether it be good time, parole, violent/non-violent offenses, etc. If anyone is having a problem doing the math leave the following info and maybe we can help one another...

* total number of years sentenced
* violent or non-violent offense
* 1st time offender, 2nd time offender, 3rd time offender, etc...(will say if the inmate is eligible for parole or not)
* any detainers
* extra charges for probation/parole violations
* and any other helpful information that you can think of
Hello, I am new to all of this. My best friend was recently sentenced ten years and is currently a month in. It is a non violent offense, and is a first time offender, don't know what detainers are. There are no violations, and at time of sentencing was told 4.5 yrs. with good behavior. Currently a month served and just made trustee, if you could help with any info I would greatly appreciate it, thank you.
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  #103  
Old 10-23-2010, 08:34 AM
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What exactly is it that you need to know? You have all the answers already. He will do 4.5 years....simple as that! If he did any jail time prior to that, he will get credit for the jail time. His rap sheet will show his good time release date. He just has to get into some programs and not get any disciplinary reports while he is there. That's actually very east to do if you just stay away from all the mess....he knows who they are, believe me. Once he completes some programs, he will earn more good time. He has all that information there. All he has to do is ask someone or go the prison law library and talk to a counsel sub. They will give him the info he needs.
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  #104  
Old 10-26-2010, 10:30 AM
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Quote:
Originally Posted by DoingTimeinLove View Post
Seems like a common problem for all of us is calculating time whether it be good time, parole, violent/non-violent offenses, etc. If anyone is having a problem doing the math leave the following info and maybe we can help one another...

* total number of years sentenced
* violent or non-violent offense
* 1st time offender, 2nd time offender, 3rd time offender, etc...(will say if the inmate is eligible for parole or not)
* any detainers
* extra charges for probation/parole violations
* and any other helpful information that you can think of
My husband was sentenced to 4 years for aggravated battery - 1st time offender. Please help with calculation
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  #105  
Old 10-27-2010, 06:07 AM
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His rap sheet will tell exactly when he gets out so you can refer to that for the best, most accurate answer. His will be easy since he is first offender. Aggravated Batter is under R.S. 14:2 Crimes of Violence and I think they changed the good time percentage on that in the last legislative session....just can't remember what they dropped it to. Prior to changing it, they had to do 85% of their time but something tells me that has changed. His rap sheet will be the best place to look.
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  #106  
Old 10-30-2010, 01:40 AM
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I do not know the exact details here, so I realize an exact answer cannot be given.
A man who's dating my ex girlfriend (Who is pregnant with my baby) is going to court soon on drug charges for cooking and dealing Meth. I understand he's facing 7-10 years at this point.

He has 2 prior felonies for Breaking and Entering and either Assault and Battery or Aggravated assault. I am not sure which charge the 2nd was. But he is now a 3rd time felon. Despite the earlier charges he is not out on Parole or probation currently, those charges are done. How much of that sentence is he likely to serve realistically? What percentage of the sentence, and how much good time time can he get?

Thanks!

dAVE
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  #107  
Old 10-31-2010, 08:12 AM
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Aggravated Assault and Aggravated Battery are BOTH felonies. I'm curious as to why you say it's a misdemeanor. Do you have a copy of his newest rap sheet? What Act does it say he's under on each one? I'm very curious about this one. Depending on where he is, you can call the records department and they will explain the rap sheet to you. You can do this if he is at a DOC facility, such as Hunt, DCI, Angola, etc., but if he's at one of the parish/DOC places, you will have to call records at Hunt to get your answers.
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  #108  
Old 11-01-2010, 06:00 AM
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For Dave...................
Consisering he is a third offender, they can sentence him as an habitual offender under R.S. 15:529.1 which enhances his sentence. You can go online to read the complete statute....it's quite lengthy but just do a search under Louisiana Revised Statute 15:529.1 and it will come up. Anything to do with meth right now is taken very seriously so I think he will get at least the minimum, if not more and then it will be enhanced due to his offender status. Good luck with this.....I understand your concern.

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  #109  
Old 11-02-2010, 01:49 AM
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Ok, well as I now understand, The official charge was operation of a clandestine lab. He has apparently given some names and cut a deal of some sort and is likely facing 7-10 years...so going with that (and this is loose information I've found out through the grapevine i realize) *IF* that is what he is sentenced, what percentage of that time is he likely to face? is he likely to even be eligible for early parole as a 3rd time felon? My only vested interest of concern here is of course the baby and do not want him around my child....but to a lessor extent the mother, who has another young child by this man, but cannot seem to break herself away from him. The longer he is gone the better for all 3 of them. But given that figure 7-10, what is the very minimum he could serve, and more realistically how much time will he realistically serve? Thanks for all your input Diane. I'm just looking for an idea of what to expect going forward. In other words...I am not sure what the minimum would be here. what would "at least the minumum" be here as far as the ammount of time he'd serve.

Last edited by TNNYTEOWL; 11-02-2010 at 01:57 AM..
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  #110  
Old 11-26-2010, 01:22 PM
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How long do you serve on a 7 year sentence IN LOUISANNA
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Old 11-26-2010, 01:27 PM
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Default How long do you serve on a 7 year sentence IN LOUISANNA

My brother was sentenced to 7 years non violent offense 2 time offender , first time was 35 years ago , no detainers , no extra charges
can you give me any info on how low he will serve.

* total number of years sentenced
* violent or non-violent offense
* 1st time offender, 2nd time offender, 3rd time offender, etc...(will say if the inmate is eligible for parole or not)
* any detainers
* extra charges for probation/parole violations
* and any other helpful information that you can think of [/quote]
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Old 02-13-2011, 01:40 PM
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My 17 year old son originally foung guilty or Armed Robbery and the judge was to give him 10 years at DCI Youthful Offender Program. His lawyer filed a motion after trial asking for the judge to return a new verdict for a lesser charge. The Judge returned a new verdict for 1st Degree Robbery. The Judge Amended based on the evidence (lack thereof), my son's mental illness factor, as well as the wishes of the victim that Kevin have the opportunity to take part in the programs at prison and serve a minimum. The State is appealing the sentence and his attorney feels that it is likely that he will end up with the original 10 years. . He will be credited with some time served. He was also home on an ankle bracelet for some of the time. Does that time go towards time served? he is a first time offender.

Could you please calculate the time for both the 7 and the 10
time served 10 months
ankle bracelet 4 months

Thanks for any help you can offer.
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  #113  
Old 02-15-2011, 04:02 AM
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Originally Posted by november2009 View Post
My 17 year old son originally foung guilty or Armed Robbery and the judge was to give him 10 years at DCI Youthful Offender Program. His lawyer filed a motion after trial asking for the judge to return a new verdict for a lesser charge. The Judge returned a new verdict for 1st Degree Robbery. The Judge Amended based on the evidence (lack thereof), my son's mental illness factor, as well as the wishes of the victim that Kevin have the opportunity to take part in the programs at prison and serve a minimum. The State is appealing the sentence and his attorney feels that it is likely that he will end up with the original 10 years. . He will be credited with some time served. He was also home on an ankle bracelet for some of the time. Does that time go towards time served? he is a first time offender.

Could you please calculate the time for both the 7 and the 10
time served 10 months
ankle bracelet 4 months

Thanks for any help you can offer.
It's going to be difficult to calculate his time without knowing which Acts he is going to be sentenced under.
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Old 02-15-2011, 10:32 PM
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It's going to be difficult to calculate his time without knowing which Acts he is going to be sentenced under.
Currently he is sentened for First Degree Robbery and is sentened to 7 years. I also wanted a calculations with the assumption of Armed Robbery with a sentence of 10 years. Thanks for any input.
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Old 02-16-2011, 05:38 AM
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Currently he is sentened for First Degree Robbery and is sentened to 7 years. I also wanted a calculations with the assumption of Armed Robbery with a sentence of 10 years. Thanks for any input.
When I say "Acts", I'm talking about what good time acts he may be sentenced under, if any.
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  #116  
Old 02-16-2011, 07:29 AM
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Unfortunately, both offenses are considered crimes of violence under LSA R.S. 14:2 and he will do 85% of the sentence, either the 10 or the 7. The only thing I don't know for sure is if that 85% changed to a different percentage last fall....Life Traveler may know the anwer to that. I lost track of it, but I'm pretty sure it's still 85%....it MAY be only 75% now....just not sure. I DO know that once you find out the act he was sentenced under, that will tell you the percentage of the sentence he will actually serve in custody. His rap sheet has the act on there and should also provide all the other info you are asking. Ask him to send you his rap sheet.
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  #117  
Old 02-24-2011, 10:42 PM
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Default Need help with calculating boyfriends time

He is a non violent first timer.. was given 5 yrs 2 yrs house arrest 3 yrs probation. Messed up now has five year sentence. He has done a total of 8 months so far. He tells me about good time ect but havent seen anything on paper yet. How much of that 5 yrs will he do? Thanks in advance for any help.
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Old 02-25-2011, 05:56 AM
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Again....you need the rap sheet. IT WILL SHOW WHAT ACT HE IS UNDER ....AND ACTUAL RELEASE DATE.
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Old 02-25-2011, 07:08 AM
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Ok, this is the deal for him....I just now realized you were a different person than the one I had previously answered and I thought I was just re-iterating. For that, I apologize! First offender, non violent will do 46 percent of the 5 years MINUS the 8 months he has already served IF they gave him credit for time served on probation/house arrest. Sooooooo....I'm thinking his total to serve on 5 would be 2 years and 4 months. Then, if we take the 8 months off, it would leave him with 1 year and 8 months left to do. Mind you, that's MY calculation!!! LOL Your best bet is to call the facility where he is and ask for the records department and they will give you the exact release. He will also be eligible for parole which will be about the same time so won't affect much of anything BUT he will also be eligible for work release almost immediately, which would allow him to work and earn money to save for when he gets out. The only thing I'm not totally certain about is how the calculate the 8 months he did prior to violation. That's why you should really just call the facility. If they give you a hard time, then contact Hunt Correctional Center in St. Gabriel and ask for records...they maintain ALL facility records. Good luck!
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  #120  
Old 03-02-2011, 02:05 PM
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Hello, I was hoping someone could help me. My husband had been incarcerated since Sept. 2009. His earliest release date is set for April 18, 2013, and is eligible for parole as soon as January 8, 2012. He is currently under Act 572. He just called me earlier and mentioned something about ACT 649. I called Records, and was informed that ACT 649 is the same thing as 572. I believe that these dates do not include good time credit. Since March 2011, he has been an "honor" trustee, and was eliglible for work release since October. Will they re-calculate his release date? and Will this new Act enable him to an earlier release? Any help on this will be helpful. Thank you in advance... May God Bless You always...
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Old 03-03-2011, 07:43 AM
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I kind of lost tract of the good time acts where 572 and 649 came into play....I don't know what 572 does but 649 is serving 46% of the sentence. That's about all I know. But I will tell you the same thing...the rap sheet spells it out very clearly. When you called Records, did you call Hunt? If so, I would call them back and ask the same question and tell them to explain the difference between acts 572 and 649...there HAS to be something different about them or it wouldn't have required a new act number. They were just trying to get rid of you but don't let them do that! Get back on the phone and try again....good luck!
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  #122  
Old 03-03-2011, 12:02 PM
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Ok, just got off the phone with Cynthia Brown at Hunt.....Acts 572 and 649 both do the same thing...they allow those who are under them to do 46% of the sentence. Act 572 was the act assigned to in-coming new offenders and Act 649 is the one they use to RE-CALCULATE offenders who were originally under Act 138. Hope this clears it up and hope I remember it when the next person asks....lol
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Old 03-08-2011, 11:07 PM
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Quote:
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Ok, just got off the phone with Cynthia Brown at Hunt.....Acts 572 and 649 both do the same thing...they allow those who are under them to do 46% of the sentence. Act 572 was the act assigned to in-coming new offenders and Act 649 is the one they use to RE-CALCULATE offenders who were originally under Act 138. Hope this clears it up and hope I remember it when the next person asks....lol
Thank you so much for taking the time to help. I talked to the people handling his file, and now, he is not eligible for parole as of January of 2011. Unfortunately, they have made this change without informing anybody, much less my husband. It is horribly sad that they can make one hope, only to change their mind on a whim. Nonetheless, the rumor about DOC is that they change their mind often. Some prisoners with experience, claim they were not up for parole the first time, but were taken to the parole board and granted parole nonetheless. I won't be putting all of my marbles in that sack! But, I can still hope... ha ha Once again, I appreciate all of your help.
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  #124  
Old 04-06-2011, 03:08 PM
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My husband is got 5 years probation for meth lab back in 2008 violated probation with no new charge.... He has 356 days credited from 2008 til now.... First time offender on this charge.... hes now in florida leaves here on may 16th.... I got the transcrpt from court where the judge ran both the florida charges and lousianna charges together.... people told me they couldnt but i got them and thats what the judge said.... I counted it up to he would get out Dec' is that right?
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Old 04-07-2011, 05:50 AM
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Since I don't know the actual dates, I can't really answer your question, but if I were you, I would call the facility where he is now and ask for records then ask them his release date. I would verify with them the judge's order for concurrent sentences between Florida and Louisiana. That is really the thing you should be doing....all questions will be answered at that point. Good Luck!
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