What is CWOF, Continued Without a Finding?

Boston Criminal Lawyer – What is CWOF, Continued Without a Finding?

What is a continuance without a finding?

A continuance without a finding, also known as a CWOF, is neither a finding of guilt or of innocence. A CWOF is taken into account during the plea bargaining process. However, instead of it being a plea of guilty, it is rather an “admission to facts sufficient for a finding of guilty.” This means that the defendant is admitting to either all or some of the facts as alleged by the government, essentially stating that these facts would more than likely be proved by the government should the case to proceed to trial.

A defendant who bargains for a CWOF voluntarily, knowingly and willingly surrenders his/her constitutional right to a jury trial and any prospective ensuing appeal. Upon agreeing to a CWOF, the judge gives the defendant what is known as a “colloquy,” a set of questions specifically intended to ensure that the defendant appreciates, among other things, the charges, the penalties, the rights being waived and the consequences of the same. In exchange, the defendant usually receives a specified period of probation for which the case will remain “open.” The case “closes” upon the successful completion of the probation term. In effect, this acts as a “dismissal” of the case. However, it is important to note that a violation of the probation terms may not only result in the revocation of a CWOF and a guilty finding being imposed on the defendant’s record, but also can, in certain circumstances, result in a period of incarceration. This is because the court has the authority to impose whatever sentence was permissible by the law for the particular crime initially. The court can also, amid several other alternatives, reprobate and/or extend the CWOF and/or modify the terms and conditions of probation.

What is a probation surrender hearing?

In a nutshell, a probation surrender, or probation revocation, is a formal hearing process that occurs once a defendant probationer is placed on either supervised or administrative (unsupervised) probation and it is consequently alleged by the probation department that the probationer has somehow violated one or more of the terms and conditions of probation. In Massachusetts, the probation department typically notifies a probationer by sending a document to the probationer’s last known address, which provides a brief description of the alleged violation(s) and orders the probationer to appear before the court on a specific date and time.

A defendant probationer has a right to legal counsel at all stages of the probation surrender. Witnesses, whom will certainly consist of at least the probation officer and perhaps the defendant, proffer sworn testimony and are subject to both direct and cross-examination. Unlike with trials, hearsay testimonial evidence at a probation revocation hearing in Massachusetts is admissible and deemed sufficient if the court finds in writing that such evidence is (1) substantially trustworthy and demonstrably reliable and (2) if the alleged violation is charged or uncharged criminal behavior, that the probation officer has good cause for proceeding without a witness with personal knowledge of the evidence presented. A defendant may also waive the right to an evidentiary hearing and stipulate to the violation and make oral argument as to disposition only, or may stipulate as to both the violation and the proposed disposition agreed upon between defense counsel and the probation officer. A court, however, is not required to adopt an agreed proposed recommendation and may instead impose its own sentence. A probation detention hearing is a unique and separate preliminary matter wherein the probation department petitions the court to have the defendant probationer detained, typically without the possibility of bail, and held until the final probation surrender hearing.

What is pre-trial probation?

Pre-trial probation is a court-sanctioned arrangement between the government and the defendant that occurs before a trial or other final disposition. Both parties first present any proposed agreements for pre-trial probation for the court’s approval, which is then either granted or denied. In the event the agreement is denied, a court may compel the parties to reach another resolution of the matter, whether by dismissal, plea bargain, or by trial. Pre-trial probation is granted on a case-by-case basis and is not available in many instances.

Pre-trial probation requires that the defendant be placed on either supervised or administrative (unsupervised) probation for a specified time period before a criminal conviction enters. This type of probation is beneficial to a defendant because the case is temporarily removed from the court docket list and is in effect dismissed provided the defendant successfully completes the probationary term. Should, however, the defendant violate any of the terms and conditions of the pre-trial probation, the case then reverts back to the docket list and proceeds through ordinary court procedure. Unlike a probation surrender/revocation, a defendant cannot be incarcerated for a violation of the pre-trial probation itself because there was never a final disposition of the matter. However, the court can conduct a bail hearing at the request of the government to potentially detain and hold the defendant with or without bail depending upon the circumstances of the alleged pre-trial probation violation along with other typical bail considerations.

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