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Maine Supreme Court: State Must Provide Evidence to Support Probation Revocation

by Dale Chappell

The State carries the burden of proving that a probationer has violated his probation in order to support a revocation of probation, the Maine Supreme Court held on December 12, 2017.

Cory Kibbe was sentenced in 2004 to 20 years in prison, with all but four years suspended, plus eight years on probation. Kibbe had served his four years in prison when he was arrested in 2017 for violating probation in August and September 2016.

At the revocation hearing, the probation officer (“PO”) admitted Kibbe was released from prison on December 16, 2007, and that Kibbe’s probation would have therefore expired December 2015. The State, though, argued that Kibbe’s prior revocations, which would have tolled his eight years of probation, added another 19 months to the term, meaning he was still on probation in 2016 at the time of the violations. But at the revocation hearing, the State conceded it did not have any documentation to support this at the time, nor could the PO testify with any degree of certainty that Kibbe was on probation at the time of the alleged violations in 2016.

Nevertheless, believing the prosecutor, the court sentenced Kibbe to another four years in prison for the violations. Kibbe appealed directly to the Maine Supreme Court. (Maine does not have an intermediate appellate court.)

On appeal, Kibbe argued that the State failed to prove he was even on probation when the alleged violations occurred in 2016. The Supreme Court agreed.

Probation may be revoked when the violation does not constitute a crime and the court finds “by a preponderance of the evidence that” the probationer inexcusably violated his probation, the Court noted. It is the State’s burden to prove these elements. As such, the burden was on the State to prove that Kibbe was still on probation at the time of the alleged violations. 

The only evidence offered by the State was the naked assertion of the prosecutor at the hearing that Kibbe was still on probation. No evidence was actually offered or entered. However, the Maine Supreme Court ruled in State v. Begin, 120 A.3d 97 (Me. 2015), that an attorney’s statements are not “evidence.”

“Someone needs to convince me that he ... was not on probation,” the judge said to Kibbe’s lawyer. The Supreme Court said this improperly shifted the burden on Kibbe, taking the burden off the State. The Court vacated the judgment revoking Kibbe’s probation, finding the State had failed to meet its burden of proof that Kibbe was on probation at the time of the violations.

The Supreme Court advised that in the future, the State should be better prepared. “The better practice is for the State to file documentation with its motion to revoke probation,” the Court stated, establishing a new procedure to avoid such problems.

See: State v. Kibbe, 2017 ME 231 (2017). 

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