The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is the Motion for Reconsideration of Dismissal of Ground for Violation of Special Condition in Amended Petition on Probation ("Motion for Reconsideration") filed by the Government on March 22, 2010. (Docket No. 138.) The Government asks the Court to reconsider its dismissal of ground 3(D) contained in the Amended Petition on Probation (Docket No. 125) filed in connection with revocation proceedings related to the sentence of probation imposed upon Defendant on February 9, 2009, by the Honorable Edward J. Judge. Currently, the final revocation hearing is set to proceed before Judge Lodge on April 22, 2010. (Docket No. 140.)
Defendant responded to the Motion for Reconsideration and the Government filed a reply. (Docket Nos. 148, 149.) Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motion will be decided on the record. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(i). As explained more fully below, the Motion for Reconsideration will be denied.
This probation revocation proceeding began with the filing of a Petition on Probation ("Petition") on September 21, 2009. (Docket No. 102.) In brief summary, the Petition contained the following alleged violations of conditions of Defendant's probation: five misdemeanor charges then pending against Defendant in magistrate court in Canyon County; numerous occasions when Defendant failed to attend counseling as directed; three reported instances of Defendant consuming alcohol; and observation by the Probation Officer that Defendant was not wearing a key. These allegations related to the mandatory condition that Defendant not commit a crime while on probation; the special condition that Defendant participate in a program of testing and treatment for substance abuse; the special condition that Defendant abstain from the use of any controlled substances and consuming alcoholic beverages; and the special condition that Defendant wear a key around his neck. (Docket No. 102.)
On December 17, 2009, Defendant made his initial appearance on the Petition but asked for a short continuance. The hearing was continued to December 22, 2009, and conducted by the undersigned Magistrate Judge. Defendant waived his right to a preliminary hearing but asked for a detention hearing, which was held that same day, after which Defendant was released on conditions additional to the conditions of probation previously imposed, including release to the custody of his grandmother, electronic monitoring and curfew, and mental health treatment and counseling. (Docket No. 114.) A date for the revocation hearing was not set at that time, although the parties indicated they wanted the hearing set in February, 2010.
On January 4, 2010, notice of a February 23, 2010 date for the final probation revocation hearing before District Judge Lodge was served electronically upon the parties. (Docket No. 117.) That same day, the undersigned was presented with a Petition for Action on Conditions of Pretrial Release, and a warrant was issued for Defendant's arrest for violation of conditions of his pre-revocation hearing release, most specifically Defendant's failure to abide by the electronic monitoring, curfew and third party custodian conditions. (Docket No. 119.) Defendant next appeared before the Court on January 12, 2010, when he waived his right to a hearing on the pre-revocation hearing release petition and also waived his right to a detention hearing. (Docket No. 123.) At that time, the undersigned ordered detention and Defendant has remained in custody through the present.
An Amended Petition on Probation ("Amended Petition") was filed on January 31, 2010, with notice provided electronically to the Government and to Defendant's counsel, although the Amended Petition itself was filed under seal. (Docket No. 125.) The Amended Petition clarified the law violations in the first section of the Petition and added to section three a positive test result from a urine sample taken from Defendant on January 12, 2010, the day of his appearance following arrest for the pre-revocation hearing violations ("Violation 3(D)"). Despite requests to the Government's counsel for a copy, it is undisputed that Defendant's counsel did not obtain a copy of the Amended Petition from either the U.S. Probation Officer, the Government or the Court before February 22, 2010, one day prior to the scheduled final probation revocation hearing. Additionally, the first time Defendant's counsel learned that the test on the January 12, 2010 urine sample was positive for "cocaine and marijuana" was upon receipt of the Violation of Probation Report on February 16, 2010.
The probation revocation hearing set for February 23, 2010, was vacated after Defendant filed a Motion to Dismiss Amended Petition on Probation ("Motion to Dismiss") (Docket No. 131) on the morning of the hearing. Subsequently, District Judge Lodge asked the undersigned to conduct the proceedings related to the Amended Petition, including the Motion to Dismiss. Notices of hearing on the Motion to Dismiss and an initial appearance on the Amended Petition were provided to the parties on March 12, 2010, (Docket Nos. 136, 137), and the Court issued an oral ruling on March 19, 2010, which ruling is the subject of the Government's Motion for Reconsideration. (Docket No. 139.)
The minutes of the hearing on the Motion to Dismiss, which stand as the Order of the Court, state:
Following arrest of Mr. Vallin on 1/11/10 and his detention on 1/12 incident to violation of release conditions, Mr. Vallin did not receive notice of the full contents of the Amended Petition and did not have an Initial Appearance on the Amended Probation Petition (dated 1/26 and filed under seal 1/31)(Docket No. 125) or the opportunity to request a preliminary hearing on the merits of the alleged violation 3(D) in the Amended Petition in advance of the revocation hearing that was set to proceed before Judge Edward J. Lodge on 2/23. The Motion to dismiss was filed that same day 2/23 (Docket No. 131). Although the Government filed no response to the motion to dismiss, the Government objected to the motion during argument. The Court finds that the Defendant was not timely afforded the protections of Rule 32.1(b)(1) relative to violation 3(D) in the Amended Petition and that continuation of the revocation hearing to a later date did not cure the procedural irregularities, as argued by the government, in this instance. The Court hereby DISMISSES Violation 3(D) from the Amended Probation Petition without prejudice to refiling or the Government requesting that Judge Lodge consider the conduct alleged in violation 3(D) in connection with sentencing upon revocation of probation.
The Government filed no written response to the Motion to Dismiss in advance of or at the time of the hearing on March 19, 2010, but now requests ...