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xavierjd, Lawyer
Category: Criminal Law
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Experience:  Over 20 yrs experience in prosecution and defense work
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Potential direct violation of probation.

Customer Question

"A Gagnon II hearing must be scheduled every thirty days. If the defendant has a potential direct violation, the Gagnon II will simply be continued in advance and the person will not be brought into court and no Gagnon II hearing will take place." My defendant has a potential direct violation, a charge of assault from the state that held him for Pennsylvania to extradite. For the 5th degree assault, he was ROR'd and given a sentencing hearing in Minnesota for April, which we'd planned to have continued until he'd served his sentence for Pennsylvania (second violation of probation - Failure to report and leaving the state). What is our best course of action for finalizing the Minnesota hearing so that this potential direct violation does not impede our Gagnon II? It is imperative that we receive sentencing for the Pennsylvania violation as soon as possible and cooperate to the fullest with both states/counties.

Submitted: 1 year ago.
Category: Criminal Law
Expert:  Fran-mod replied 1 year ago.
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Customer: replied 1 year ago.

No problem at all. I realize this is a very case-specific situation and may require more information and/or more time to answer.


 


 

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Yep, still waiting on a professional with some experience or insight into this grey area.

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Expert:  xavierjd replied 1 year ago.
Thanks for using JustAnswer.com. It will be my pleasure to assist you today.

Is he currently being held in Pennsylvania?

What is his sentence in Pennsylvania?

Has the defendant asked to be taken to Minnesota?

Thanks
Customer: replied 1 year ago.

He is currently in custody within Pennsylvania, and awaiting sentencing. He has a court date but as of yet no sentence. His PO is guessing with some education that he will be released after 2-3 months and return to probation.

The way things sound, they won't be having the first Gagnon and will skip straight to sentencing, and it seems as though this Minnesota charge will not effect him at all (in PA at least). I can't say for certain, but his PO believes he'll have a release date on his next court appearance.

I have also spoken with his current probation officer about having his supervision transferred to Minnesota, and upon first court date he will recieve a public defender that he can give the same request to.

Expert:  xavierjd replied 1 year ago.
Hi,

A Gagnon II hearing, whether it be with regard to a contested violation, alleged violations or merely for the purpose of disposition or for both purposes, shall be scheduled promptly, but no later than 120 days after the Gagnon I hearing. This shall be done by the hearing officer filing a motion with the Court Administrator requesting that a Gagnon II hearing be scheduled and advising in that motion as to when the Gagnon I hearing was completed. That motion shall also indicate whether the allegations are contested or whether the Gagnon II hearing will be for disposition purposes only. The hearing officer shall serve a copy of the motion upon the District Attorney's office. The defendant shall be afforded the right to representation by an attorney of choice, or upon his/her application, the appointment of the Public Defender for the Gagnon II hearing.

If his probation officer believes that he will be released from incarceration within 2-3 months and then return to probation, it is quite possible that he will be allowed to leave the state to return to Minnesota for sentencing. The defendant's attorney NEEDS to make sure that the judge understands that he must return to Minnesota for sentencing.

His attorney should provide the judge and the probation officer the case number XXXXX the case in Minnesota, the judge in Minnesota, and the charge for which he will be sentenced.

It may even be possible that if the defendant returns to Minnesota for sentencing, that the Pennsylvania probation may be terminated so that the defendant can serve out any sentence in Minnesota. But....the attorney must work with the probation officer/judge in Pennsylvania to ensure that the defendant is allowed to return to Minnesota.

Further, if Pennsylvania doesn't close out the defendant's case, the judge in Pennsylvania must agree to allow any probation to be transferred to Minnesota. BUT, the Minnesota probation department MUST AGREE to allow the Pennsylvania probation to be transferred.

You should SERIOUSLY consider speaking to an attorney who specializes in criminal law in Minnesota. Sometimes, an initial consultation is free or at a minimal charge. You can describe the problem to the attorney and decide how best to coordinate the Pennsylvania and Minnesota cases.

Below is a link to the Minnesota Bar Association Attorney Referral page.

http://www.mnbar.org/nav-find.asp

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. If you are satisfied with my answer, please rate it as "excellent" or in another positive manner. That is the only way that I can get credit for answering the question.

Thank you for your business!

XavierJD

xavierjd, Lawyer
Category: Criminal Law
Satisfied Customers: 3400
Experience: Over 20 yrs experience in prosecution and defense work
xavierjd and 3 other Criminal Law Specialists are ready to help you
Expert:  xavierjd replied 1 year ago.

Hi,

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

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