State v. Berglund

                                      424

 Argued and submitted May 29, 2019, reversed and remanded for resentencing
                               May 12, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  SEAN TAYLOR BERGLUND,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                       120646784; A165232
                                  

    Defendant appeals a sentencing judgment revoking his court-supervised probation. During the initial probation period, the court commenced revocation proceedings by issuing an arrest warrant, but the revocation hearing was not held
until well after the probation period expired. In connection with the revocation
hearing, and also well after the probation period expired, the state added six
additional probation violation claims, all occurring during the probation period.
Defendant assigns error to the court’s consideration of the additional probation
violation claims. Held: The trial court erred in considering the additional probation violation claims raised by the state after the probation period ended. The
specific statute that empowers a court to sentence probationers for violations
confines that power to probation violations that are actually charged during the
probation period.
    Reversed and remanded for resentencing.



   Eric J. Bergstrom, Judge.
   Sarah De La Cruz, Deputy Public Defender, argued the
cause for the appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
   SERCOMBE, S. J.
   Reversed and remanded for resentencing.
   Powers, J., dissenting.
Cite as 

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        SERCOMBE, S. J.
         Defendant appeals from a sentencing judgment,
claiming that the trial court erred in revoking his court-supervised probation. During the period of probation, the
court commenced probation revocation proceedings by
issuing an arrest warrant. The warrant was based on an
alleged probation violation, specified in the supporting affidavit, that defendant had pleaded guilty to a crime. Later,
after the probationary period ended, the trial court initiated
supplemental proceedings to revoke probation by ordering a
probation violation hearing based on violations alleged in a
new affidavit. Those charges included the original charge
and six additional probation violation claims. The court
revoked probation after it found that defendant committed two of the new charges. On appeal, defendant argues
that the trial court lacked authority to revoke his probation
based on charges filed after the conclusion of the probation
period and that the court’s authority to revoke probation is
limited to adjudicating claims brought while the probation
was still in force.
        “We review a trial court’s revocation of probation
for errors of law.” State v. Miller, 

,

 (2008). For the reasons explained below, we
conclude that the trial court erred in revoking probation
based on allegations contained in the post-probation affidavit. Accordingly, we reverse the sentencing judgment and
remand for resentencing.
         The facts are undisputed. In June 2012, defendant
pleaded guilty to misdemeanor driving under the influence of
intoxicants (DUII) and entered into diversion. In September
2012, defendant was involved in a fatal car accident due to
driving while intoxicated and was indicted for first-degree
manslaughter in May 2013. In June 2013, the court revoked
diversion due to defendant’s involvement in the fatal accident, entered a judgment of conviction for DUII from the
June 2012 plea, and sentenced defendant to a two-year
probationary sentence, which meant that the probationary
term would have expired in June 2015. In March 2014, the
court issued a probation violation warrant based on an affidavit that alleged that defendant had violated his probation
426                                                      State v. Berglund

when he pleaded guilty to second-degree manslaughter as
a result of the September 2012 fatality. A hearing on that
affidavit was scheduled but was set over multiple times.
         In January 2017, long after the expiration of the
probation period, the state sought to file a new affidavit
to add new allegations to the original probation violation
claim. Defendant objected and argued that any new charges
would be untimely and that the grounds for revoking probation were limited to the allegation in the affidavit filed
before the expiration of probation. The court permitted the
state to file an amended affidavit that added new claimed
violations.
           The court explained:
         “Well, because of the confusing nature of the record, and
    the timing of everything, I think it’s probably appropriate
    … for the State to lay out what they believe the violations
    are, and then each side can be prepared to either admit or
    prove those violations.”
         In March 2017, the state filed the new “affidavit and
order for judicial supervision probation violation” alleging
seven different violations during the probationary period,
including that defendant: (1) pleaded guilty to manslaughter (the charge in the original affidavit); (2) pleaded guilty
to two counts of contempt in an unrelated case; (3) failed
to complete a drug and alcohol evaluation as required;
(4) failed to complete any and all required drug and alcohol treatment; (5) did not comply with the enhanced bench
probation monitoring program or its conditions; (6) drove a
motor vehicle without a license; and (7) left the state without the court’s permission. Based on that affidavit, the trial
court scheduled a probation violation hearing.
         In June 2017, the trial court held the probation violation hearing on the allegations in the March 2017 affidavit. At the hearing, the state withdrew the allegation from
the March 2014 affidavit.1 Ultimately, the court found that
defendant violated the conditions of his probation by failing

    1
      The prosecutor conceded that pleading to the crime of manslaughter that
occurred before the imposition of probation was not a “new law violation” that was
committed during the probationary period.
Cite as 

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to complete a drug and alcohol evaluation and treatment program, as well as leaving Oregon without the court’s permission. The court entered a judgment revoking probation and
imposed a six-month jail sentence on the DUII conviction.
         On appeal, defendant argues that the trial court
erred “in allowing the state to proceed on an untimely filed
affidavit and in revoking probation based on allegations not
contained in the original warrant.” Specifically, defendant
argues that the trial court lacked authority to revoke probation based on new allegations in the March 2017 affidavit
because those allegations “do not [relate] back to the original warrant” and because “a court’s authority to conduct
probation violation hearings after probation has ended is
limited to allegations in the original warrant.”
         Defendant explains that the relevant statutes allow
the court authority to adjudicate violations of the conditions
of probation that are charged during the period of probation,
even if the adjudication occurs after probation concludes.
The statutes do not, however, grant the court the authority
to initiate supplemental proceedings, after the expiration of
probation, to punish different probation violations. We agree
with defendant.
         The sentencing authority of a court must be
expressly conferred by statute. As stated in State v. Coventry,

, 

 (2018), a “court’s sentencing authority exists solely by virtue of a statutory grant of
power and therefore cannot be exercised in any manner not
specifically authorized.” Under ORS 137.593(2)(b),
      “… [T]he sentencing judge shall retain authority:
      “…
      “(b) To determine whether conditions of probation have
   been violated and to impose sanctions for the violations if
   the court, at the time of sentencing, states on the record
   that the court is retaining such authority;
       “(c) To cause a probationer to be brought before the
   court for a hearing … and to revoke probation or impose
   such other or additional sanctions or modify the conditions
   of probation as authorized by law; and
428                                                      State v. Berglund

       “(d) To impose and require an offender to serve a
   period of incarceration not to exceed 180 days as a sanction
   for revocation of probation.”2
(Emphases added.)
         Thus, the express “retain[ed] authority” of a sentencing judge is to “determine whether conditions of probation have been violated” and then “to revoke probation …
as authorized by law.” ORS 137.545(2) provides that probation revocation authority. It grants the sentencing court
authority to revoke probation “for violating any of the conditions of probation,” provided that proceedings to sanction
those probation violations are initiated “[a]t any time during
the probation period.” That statute provides, in part,
   “At any time during the probation period, the court may
   issue a warrant and cause a defendant to be arrested for
   violating any of the conditions of probation.”
ORS 137.545(2) (emphasis added). Under ORS 137.545(2),
then, a proceeding to revoke probation is initiated by a warrant and its supporting affidavit that must be issued “during
the probation period.”
         We have construed ORS 137.545(2) to preclude revocation when the proceedings are initiated after the “time
during the probation period.” See Miller, 

) (noting that, “unless [a] defendant’s probation was
extended either by the court or by operation of law beyond
[its original term], the court commit[s] error by initiating
revocation proceedings … and revoking probation at a
later time”); see also State v. O’Neal, 

,

 (1976) (“[A] court is without authority to revoke
probation for a crime committed during the probationary
period when revocation proceedings have not been initiated
before the probationary period has expired.”).
         However, that preclusion does not exist when a
proceeding for violating a condition of probation is initiated “during the probation period” but the adjudication of
   2
     Under ORS 137.540(7),
       “[f]ailure to abide by all general and special conditions of probation may
   result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions in accordance with rules adopted
   under ORS 137.595.”
Cite as 

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that violation occurs afterwards. In State v. Ludwig, 

, 

 (1959), the court, applying former ORS 137.550 (1957), renumbered as ORS 137.545 (1999),
concluded,
   “Probation is a statutory process and, under laws similar to
   ours, it seems to be the general rule that if the revocation
   procedure is started properly before the expiration of the
   term, the court retains jurisdiction, even though the final
   hearing and adjudication are after the end of the probation
   period.”
(Emphases added.) Under Ludwig, the court “retains jurisdiction” for the “adjudication” of a particular probation violation “after the end of the probation period,” provided that
“the revocation procedure is started properly before the
expiration of the term.”
         The meaning of “retains jurisdiction” was fleshed
out in our subsequent cases. As noted in State v. Granberry,

, 

 (2013),
   “[The] proper inquiry in this case, as it was in Ludwig, is
   whether the trial court had statutory authority to impose
   or revoke probation. See State v. O’Neal, 

, 

 (1976) (noting that Oregon has adopted
   “the general rule that the sentencing authority of a court
   exists solely by virtue of a statutory grant of power and
   therefore cannot be exercised in any manner not specifically authorized”). That statutory inquiry is not a jurisdictional one.
       “Thus, notwithstanding the Supreme Court’s occasional
   use of the term ‘jurisdiction,’ the issue in Ludwig reduced
   to whether the probation statutes in effect at the time
   gave the trial court the statutory authority to conduct a
   probation-violation proceeding after the defendant’s term
   of probation had expired.”
(Emphases in original.)
          Thus, the inquiry is whether the “retain[ed] authority” of a sentencing court under ORS 137.593(2)(b), to “determine whether [certain] conditions of probation have been
violated and to impose sanctions for [those] violations” exists
for probation violations that have been noticed and charged
at a different time than “during the probation period” under
ORS 137.545(2).
430                                                        State v. Berglund

          The controlling statutes, noted above, and their
context compel the conclusion that the retained authority of a sentencing court to adjudicate a probation violation is limited to violations that are reported and charged
during the probation period. That conclusion is evident
from the wording of ORS 137.545(2) and ORS 137.593(2)(b),
the fundamental nature of probation revocation proceedings as “violation-specific,” the holdings to that effect in
State v. Vanlieu, 

, 

 (2012), and
Ludwig, and the recognition in our case law that an explicit
expansion of the period of probation is necessary to add
supplemental probation violations as additional bases for
sanctions.
         First, as noted, the probation revocation proceeding
authorized by ORS 137.593(2)(b) (“[t]o determine whether
conditions of probation have been violated and to impose
sanctions for the violations”) is a proceeding to make a
determination about specific probation violations. The purpose of a probation revocation hearing is to punish the
conduct constituting the specific, charged probation violation. State v. Patterson, 

, 

(2015). The “retain[ed] authority” of a court referenced in
ORS 137.593(2)(b), that continues during and after probation, is to do just that, to adjudicate the specific, charged
violations—and no more.
         Thus, the scope of a court’s retained authority
under ORS 137.593(2)(b) is tied to particular probation
violations—the ones charged in the affidavit supporting the
arrest warrant issued during the probation period. The affidavit supporting the arrest warrant details the specifics of
the violations of the conditions of probation. Importantly,
the affidavit and arrest warrant must be filed “during the
probation period” under ORS 137.545(2). Those charged violations are then adjudicated in the “violation … hearing”
referenced in ORS 137.545(3).3

    3
      ORS 137.545(3) allows the magistrate authority to “release the probationer
upon the condition that the probationer appear in court or at a later date for
a probation violation or revocation hearing.” See also ORS 137.595(2)(b) (analogously describing “written notice of the probationer’s right to a hearing before the
court to determine whether the probationer violated the conditions of probation
alleged in a probation violation report”).
Cite as 

 (2021)                                                  431

         A probationer has a right to notice of specific,
claimed probation violations, and the revocation proceeding
is limited to those noticed violations under the due process
clause of the Fourteenth Amendment to the United States
Constitution.4 Thus, the statutes and the federal constitution make probation revocation proceedings specific to the
noticed charges.
         Simply put, the “retain[ed] authority” under ORS
137.593(2)(b) to adjudicate specific probation violations
that are charged during the probation period is the same
as the “retained jurisdiction” reserved by the Ludwig court
to “adjudicat[e]” probation violations after the ending of the
probationary period. That is the way we viewed the scope
of the proceedings in Vanlieu. There, we concluded that a
court lacks authority to revoke a defendant’s probation
based solely on conduct that occurred after expiration of the
designated probationary term. In reaching that conclusion,
we determined,
    “If a probation violation proceeding is commenced before the
    probationary period is set to expire, the trial court retains
    authority to hold a hearing on the charged violation after the
    date on which the probationary term would have expired.”

 (emphasis added). In confining the retained
authority to be one for the sanctioning of “the charged violation,” we relied on Ludwig and the holding in Bryant v. State,

, 

 (1963), that the issuance of
an arrest warrant during the probationary period “preserved
[the trial court’s] jurisdiction to proceed with the pending matter as soon as warrants could be executed.” (Emphasis added.)
Again, the retained authority is limited to “the charged violation,” the violation noticed in the initiating action, and “to
proceed with the pending matter.” It is not greater and does
not include violations charged after the conclusion of the probationary period that are not a part of the “pending matter.”

     4
       In Morrisey v. Brewer, 

, 

, 

(1972), the Court held that the minimum due process rights extended to a parolee
during parole revocation proceedings included “written notice of the claimed violations of parole,” as well as a “written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.” The Court later concluded
that those rights apply equally to probation revocation proceedings. Gagnon v.
Scarpelli, 

, 

, 

 (1973).
432                                             State v. Berglund

          The state argues that the filing of a probation violation charge during the period of probation gives a sentencing court carte blanche authority to sanction a probationer
for any violation of the conditions of probation, even when
the specific probation violation charge is initiated after the
conclusion of probation. It argues that “the commencement
of the probation-violation proceeding essentially tolls the
termination of probation.” Although the state disclaims it,
its position appears to be that the supervising period of probation is implicitly extended by the filing of a probation revocation proceeding, so that new probation violation charges,
dating from the original period of probation, can be brought
during that extended period of supervision.
        As noted, however, any sentencing authority must
be expressly conferred by statute and is not implied. Vanlieu
confirms that principle, concluding that an expansion of the
probationary period must be by explicit action of the sentencing court under its statutory authority:
        “An extension of probation, like a decision to revoke probation, is a deliberate judicial act; it is not the automatic
   consequence of the issuance of a show-cause order to revoke
   a defendant’s probation. ORS 137.545(1)(a) provides that
   ‘[t]he period of probation shall be as the court determines
   and may, in the discretion of the court, be continued or
   extended.’ Under that statute, a court may extend probation
   without finding a violation of a condition of probation if, in
   its discretion, it determines that the purposes of probation
   are not being served. State v. Stanford, 

,
   

 (1990); State v. Jacobs, 

,
   

 (1984). In Stanford, we held that,
          “ ‘[a]lthough defendant’s original probation period
      had expired on June 26, 1988, three years after his conviction, the trial court nevertheless retained jurisdiction to modify and extend probation, because the state
      filed its motion before that date. We said in [Lopez, 30
      Or App at 691]: “[W]here the ‘show cause’ order initiating the revocation process is itself issued prior to the
      expiration of the probationary period, the court retains
      jurisdiction to enter a revocation order after the period
      has expired.” We apply the same analysis to a probation
      extension.’
   “100 Or App at 307 n 3 (second brackets in Stanford).”
Cite as 

 (2021)                                                  433

 (brackets in original; footnote omitted); see also O’Neal, 

 (no tolling of the
probationary period by the consequences of defendant’s conduct since such an extension would need to be specifically
authorized by statute).5
         Thus, the state’s suggestion that the effect of a
timely initiation of probation revocation proceedings is to
implicitly extend the period of probation to allow the filing of
new charges within the expanded probationary period is not
correct. The sentencing court lacks that implicit authority.
Its authority is confined to that explicitly conferred by ORS
137.545(2)—to adjudicate charges filed “during the probation period.”6
         In sum, the authority of a sentencing court to adjudicate probation violations charged after the end of the probationary period must be explicitly conferred by statute.
There is no statute conferring that authority. And the statutes that govern the retained authority of a court to sanction probation violations confine that authority to violations
that are charged “[a]t any time during the probation period.”
No such violation was sanctioned here.
         Our holding—that the state should supervise the
probation of its probationers and charge violations it discovers
as a result of that supervision in a timely way—is based on
the statutory obligations of the state to do just that. That holding minimizes the risk of unfairness to probationers in having
to defend against stale claims that were evident, unfiled, and
not noticed during a long-concluded probation period.
           Reversed and remanded for resentencing.
     5
       Cf. OAR 213-005-0008(3) (“The time during which the offender has
absconded from supervision and a bench warrant has been issued for the offender’s
arrest shall not be counted in determining the time served on a sentence of
probation.”).
     6
       We reject the state’s contention that the later charges relate back to the
original affidavit because the sentencing statutes do not create that effect. In
other legal settings, the ability of amended allegations to “relate back” to the time
of the initial filing must be expressly authorized and is not implied. Compare, e.g.,
ORCP 23 C (relation back of amended pleadings in civil proceedings), with ORS
131.105 (“A criminal action must be commenced within the period of limitation
prescribed in ORS 131.125 to 131.155.”) and State v. Kuznetsov, 

,

 (2008) (amendment of accusatory instrument does not relate back to
the original indictment).
434                                         State v. Berglund

        POWERS, J., dissenting.
         The trial court’s authority to adjudicate allegations
that defendant violated his probation is not, in my opinion, as
circumscribed as the majority opinion concludes. Defendant
advances a single assignment of error that contends that
the trial court erred when it revoked probation based on
allegations in an amended affidavit supporting a warrant
that “was not timely, because it was filed after defendant’s
probation expired and it contained new allegations that
were not present” in the original affidavit filed to revoke
probation. Defendant further argues that, because of those
deficiencies, the trial court “lacked authority” to revoke probation. In concluding that the trial court lacked authority to
revoke probation, the majority opinion proceeds as if there
were “supplemental proceedings” to revoke probation that
were separate and apart from the probation revocation process that began with the issuance of a probation violation
warrant in March 2014. I respectfully dissent.
         As an initial matter, some deck clearing is in order.
Defendant does not challenge on appeal the trial court’s
findings that he violated his probation as alleged in the
March 2017 affidavit, nor does he argue that the court
abused its discretion when it revoked his probation based
on those findings. Likewise, defendant does not challenge
the sentence that the trial court imposed when it revoked
probation. Thus, as framed by defendant’s arguments on
appeal, the narrow issue before us is whether the trial court
had the authority to revoke probation based on allegations
contained in the amended affidavit.
         It is well settled that when “a circuit court commences a revocation proceeding during a defendant’s period
of probation, through a show cause order or a bench warrant,
the court retains jurisdiction over the defendant even after
probation ends.” State v. Miller, 

, 

 (2008); see also State v. Ludwig, 

,

 (1959) (explaining that “[p]robation is a statutory process and, under laws similar to ours, it seems to be
the general rule that if the revocation procedure is started
properly before the expiration of the term, the court retains
jurisdiction, even though the final hearing and adjudication
Cite as 

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are after the end of the probation period”).1 It is also well
settled that “a court lacks authority to revoke probation for
an action that a probationer committed during the probationary period when revocation proceedings have not been
initiated before the probationary period has expired.” Miller,

. Importantly, “[a]n extension of probation,
like a decision to revoke probation, is a deliberate judicial
act; it is not the automatic consequence of the issuance of a
show-cause order to revoke a defendant’s probation.” State v.
Vanlieu, 

, 

 (2012).
        In Vanlieu, we held that the trial court “lacked
authority to revoke defendant’s probation based solely on
conduct that occurred after the expiration” of the probationary term. 

. In that case, the trial court imposed
an 18-month probationary term that was later extended
to January 2003. In December 2002, the defendant was
arraigned on a show cause order and a probation violation
hearing was scheduled for February 2003. Ultimately, the
defendant failed to appear at several hearings and eventually was arrested seven years later in April 2010. The court
amended the show cause order to add new allegations that
the defendant had violated his probation conditions based
on conduct that had occurred after January 2003. When the
case finally proceeded to a hearing on the amended show
cause order, the court ultimately revoked probation based on
a number of the newly added allegations, and the defendant
appealed. 

.
        We first rejected the defendant’s argument that,
because the trial court did not issue a warrant for his arrest
during the probationary period, the court lacked authority
to revoke his probation after the probationary period had
expired. We concluded that, when a trial court initiates a
revocation proceeding during a defendant’s term of probation
    1
      Although some decisions discuss the inquiry as one of “jurisdiction,” I
agree with the framing by the majority opinion that the proper inquiry is one of
statutory “authority,” viz., whether a trial court has the authority to adjudicate
a probation-violation proceeding after probation was set to expire. See State v.
Granberry, 

, 

 (2013) (observing that, “notwithstanding the Supreme Court’s occasional use of the term ‘jurisdiction,’ the issue in
Ludwig reduced to whether the probation statutes in effect at the time gave the
trial court the statutory authority to conduct a probation-violation proceeding
after the defendant’s term of probation had expired” (emphases omitted)).
436                                            State v. Berglund

either through a show cause order or a bench warrant, the
court retains authority over the defendant even after the
probation ends. Id. at 367-68.
        The defendant alternatively argued that the court
did not have the authority to revoke probation based solely
on conduct that occurred after the term of his probation
expired. We agreed with that argument:
   “[T]he state did not move to extend … defendant’s probation at any time; nor did the trial court exercise its discretion to do so. Instead, by issuing a show cause order to commence a probation violation proceeding before defendant’s
   probationary period expired, the court reserved its authority to adjudicate and sanction the violation that the state
   alleged. But, without extending defendant’s probation, the
   court’s reserved authority was limited.”
Id. at 369. Focusing on that reasoning, defendant in this case
argues that the trial court had “limited” authority to adjudicate and sanction any allegations in a show cause order
or warrant filed during the probationary period, but “does
not have authority to revoke probation for subsequently filed
allegations.” In my view, Vanlieu is not so restrictive.
         As noted earlier, we previously have held that a court
retains authority over a defendant—even after probation
ends—if the proceeding is initiated through a show-cause
order or a bench warrant. See Miller, 

.
Defendant does not challenge that underlying premise, and
he does not contest the premise that a probation-violation
proceeding was initiated in March 2014. Instead, he argues,
and the majority opinion agrees, that Vanlieu limited the
court’s authority to the allegations identified before probation ends. Although that is a plausible interpretation, I ultimately conclude that it has little support in Vanlieu or in the
statutory framework governing probation.
          To be sure, Vanlieu held that misconduct outside of
the probationary period could not be the sole basis on which
a trial court revokes probation. In so concluding, we reasoned that “there is no indication that the legislature contemplated” a situation where a defendant’s probationary
period would be extended automatically due to the “mere
filing of a show-cause order[.]” Vanlieu, 

.
Cite as 

 (2021)                                                437

Thus, because the trial court did not exercise its discretion
to extend the defendant’s probation, “nor did it find that
defendant violated the terms of his probation before it was
set to expire,” the court “lacked authority to revoke defendant’s probation based on misconduct that occurred after
his probationary period had expired.” 

         In this case, however, the trial court’s authority
did not depend on defendant’s probationary period being
extended. That is so, because the two grounds for revocation
were events that had occurred within defendant’s probationary term and not, like Vanlieu, on events occurring after the
probationary period expired. Moreover, defendant has not
argued on appeal that the trial court abused its discretion
when it allowed the state to amend the allegations. Further,
there is no dispute that, by issuing the warrant in March
2014, the trial court initiated probation-violation proceedings “during the probation period,” as required by ORS
137.545(2).2 In short, like Ludwig, Miller, and similar cases,
the trial court retained authority to adjudicate alleged misconduct that occurred during the term of probation, even
though the final hearing and adjudication was outside the
probationary period.
        Further, there is nothing in the statutory framework that suggests that a trial court lacks authority to
act on amended allegations. Rather, as the Supreme Court

   2
     ORS 137.545 provides, in part:
       “(2) At any time during the probation period, the court may issue a warrant and cause a defendant to be arrested for violating any of the conditions
   of probation. … If the offender does not consent to structured, intermediate
   sanctions imposed by the parole and probation officer or supervisory personnel in accordance with the rules adopted under ORS 137.595, the parole and
   probation officer, as soon as practicable, but within one judicial day, shall
   report the arrest or detention to the court that imposed the probation. The
   parole and probation officer shall promptly submit to the court a report showing in what manner the probationer has violated the conditions of probation.
       “(3) Except for good cause shown or at the request of the probationer, the
   probationer shall be brought before a magistrate during the first 36 hours of
   custody, excluding holidays, Saturdays and Sundays. That magistrate, in the
   exercise of discretion, may order the probationer held pending a violation or
   revocation hearing …. In lieu of an order that the probationer be held, the
   magistrate may release the probationer upon the condition that the probationer appear in court at a later date for a probation violation or revocation
   hearing.”
438                                         State v. Berglund

observed in State v. Donovan, 

, 

(1988), and Gebhart v. Gladden, 

, 

(1966), probation revocation hearings are less formal than a
criminal trial. The court explained that a probation revocation hearing “is summary in nature” and that “[t]rial judges
have great discretion in controlling the nature and scope
of summary hearings.” Gebhart, 

. Indeed, in
Vanlieu and other cases, we have explained that, under ORS
137.545(1)(a), a court may extend probation without finding
a violation of a probation condition if the court, in its discretion, determines that the purposes of probation are not
being served. Vanlieu, 

; see also State v.
Stuve, 

, 

, rev den, 

(1992) (noting that “[t]he court has authority to extend probation without finding a violation”).
         Finally, to the extent that defendant and the majority opinion rely on the analogy that a show cause order or
bench warrant affidavit is akin to an accusatory instrument
in a criminal proceeding, I would reject that argument. See
State v. Lindquist, 

, 

 (2004)
(holding that “the initiation of a probation violation proceeding does not commence a prosecution”); see also Donovan,

 (recognizing that a probation revocation hearing “is not easily categorized as either criminal or civil” and
explaining that the burden of proof is the lower standard
used in civil cases). Further, I respectfully disagree with the
majority opinion proceeding on the assumption that these
were “supplemental proceedings” to revoke probation. The
probation-violation proceedings were initiated in March
2014 when the trial court issued a probation violation warrant. That hearing was set over multiple times, the state
was allowed to amend the allegations, and that proceeding concluded with the trial court revoking probation. The
majority opinion unduly bifurcates the probation-violation
proceedings and then searches for authority for the trial
court to act on the amended allegations.
        I respectfully dissent.