559.115. Appeals, probation not to be granted, when — probation granted after delivery to department of corrections, time limitation, assessment — one hundred twenty day program — notification to state, when, hearing — no probation in certain cases.
When courts can and can’t give probation, and how the 120-day program works
This law explains when a judge can give someone probation after they’re sent to prison and how the 120-day rehab program can be used. It also lists certain crimes where probation isn’t allowed.
1. Judges can’t grant probation or parole while an appeal of a conviction is still active in appellate court.
2. A judge can give probation within 120 days of the person entering prison, but only on the judge’s own decision—not by request. The court may ask for a report from the Department of Corrections. The person can be placed in a treatment program or given other lawful conditions of probation.
3. A judge can recommend someone be placed in a 120-day program by the Department of Corrections. The department decides the specific type of program and, if completed successfully, the person will be released on probation—unless the judge says otherwise after a hearing. If the person doesn’t complete the program, they’re removed and the court decides what happens next.
4. If someone can’t be placed in the 120-day program, the court can consider other legal options. This includes placing the person in a private or nonprofit program, paid by the offender, or ordering probation while the person waits for treatment if they were convicted of a nonviolent Class C, D, or E felony.
5. For sex offenses classified as Class B felonies (unless the person is labeled a predatory sexual offender), the judge must request a sex offender assessment. This is not the same as a 120-day program and follows a different probation process.
6. If the court wants to grant probation and it’s not through a 120-day program, it must notify the state in writing. The state can request a hearing within 10 days. If they don’t respond, the court may proceed.
7. Time spent in prison before probation under this law doesn’t count as a prior prison term when calculating minimum prison time for future sentences.
8. Probation cannot be given to people convicted of certain crimes, including second-degree murder, first-degree rape or sodomy, first-degree child molestation (Class A felony), certain types of child abuse, or if the person is a predatory sexual offender or if the law specifically says no probation is allowed.
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