holding that a probationer may-appeal a probation condition prior to its violation because, inter alia, “any challenge to a condition of probation which must await violation of the condition and probation revocation may, by its very nature, become moot’’
How later courts described this case
- holding that a probationer may-appeal a probation condition prior to its violation because, inter alia, “any challenge to a condition of probation which must await violation of the condition and probation revocation may, by its very nature, become moot’’
- district court's calculation of the monthly payments defendant must make toward his restitution obligation constitutes a new probationary condition which becomes ripe for appeal at the time it is imposed and must be challenged at that time or else it will be waived
Written by the judges who cited it.
The opinion
SLOVITER, Chief Judge,
concurring.
I fully agree with the majority’s conclusions that this court has appellate jurisdiction and that the district court’s order requiring payments of $1,000 per month toward Ofchinick’s restitution obligation should be affirmed. I nonetheless take the unusual step of writing separately because I believe that the majority opinion goes much further than necessary in its discussion of our jurisdiction. Because I believe this dictum may raise some substantial questions in the future about our jurisdiction over appeals when there has been an alleged violation of a condition of probation, I thus write to emphasize what is not before us.
In its discussion of jurisdiction, the majority states that the imposition of a new term or condition of probation is final, that it ends the litigation on the merits of that probation condition, and thus that it is ripe for review by this court. I find this analysis persuasive and conclusive.
Therefore, I see no reason for the majority to reach to discuss an issue that is not before us, i.e., whether Ofchinick would have waived his right to challenge the restitution condition had he not appealed at this time. The majority concludes, by analogy to our opinion in United States v. Stine, 646 F.2d 839 (3rd Cir.1981), that Ofchinick would indeed have waived his challenge. In Stine , we held that a probationer who was subject to the condition of attendance at psychiatric counseling sessions could not defend revocation of probation for failure to comply on the ground of the unconstitutionality of the condition because he failed to appeal the imposition of the condition. However, we also noted that Stine “neither requested reduction of the sentence by deletion of that condition nor challenged it as illegal before the district court, as he could have under Rule 35 of the Federal Rules of Criminal Procedure.” Id. at 845 .
Thus, in Stine we left open the possibility that a probationer who wished to challenge a condition of probation could raise that objection through some post-imposition action in the district court even after the time for appeal had passed from the imposition of probation. Moreover, when the probation condition which is at issue involves payment of restitution, the court cannot revoke probation without inquiring into the reasons for the failure to pay. See Bearden v. Georgia, 461 U.S. 660, 672 , 103 S.Ct. 2064, 2072-73 , 76 L.Ed.2d 221 (1983).
I do not suggest that Stine could necessarily have mounted a later attack on his probation condition even if the circumstances had not changed. However, I believe that the effect of Bearden on our earlier opinion in Stine is an issue that raises sufficient question that it should be reserved for a case when it is necessary to the decision. Because I believe that this is not such a case, and therefore that nothing that we say on that issue can bind the court, I would reserve discussion on that issue for another day.