State v Orr

2005 UT 92
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20041057
Plaintiff and Respondent,
v.
F I L E D
David J. Orr,
Defendant and Petitioner. December 30, 2005
---
Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 0001902772
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura B. DuPaix,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Larry R. Keller, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 The question before us is whether the district court
erred in extending David J. Orr’s probation when (1) Orr did not
receive notice that the State intended to seek an extension of
probation until seven days after his probation was originally set
to expire and (2) the district court, in its written order, did
not expressly find that Orr had violated a term of his probation
or that such violation was willful. We conclude that notice of a
probation extension proceeding is sufficient, even if served
after the original probationary term was set to expire, provided
a probation violation report is filed prior to the original
expiration date and that the notice complies with due process.
We further conclude that to extend probation a court must make
written findings that a defendant violated the terms of
probation, but that a transcript of oral findings may satisfy
this requirement. Applying these conclusions of law to the facts
presented in this case, we affirm the judgment of the court of

1 Based on a handwritten adjustment to the date stamp on the
probation violation report, Orr alleges that the probation
violation report was filed on May 13, 2003, the date the
violation report was docketed. But the district court held that
the probation violation report was filed on May 9, 2003, based on
AP&P agent Robert Egelund’s testimony and on the date stamp on
the report. The court of appeals accepted that finding, see
State v. Orr, 2004 UT App 413, ¶ 9, 103 P.3d 164, and that issue
is not before us on certiorari.
2 Utah Code section 77-18-1(11)(b) provides that “[t]he
running of the probation period is tolled upon the filing of a
violation report with the court alleging a violation of the terms
and conditions of probation or upon the issuance of an order to
(continued...)
No. 20041057 2
appeals that the district court properly extended Orr’s
probation.
BACKGROUND
¶2 Orr pleaded guilty to two third degree felonies in
connection with alleged fraud and securities violations. On May
12, 2000, the district court sentenced Orr to two consecutive
prison terms of zero-to-five years. The district court suspended
Orr’s sentence and placed him on thirty-six months probation
under the supervision of the Utah Adult Probation and Parole
Department (“AP&P”). One of the conditions of Orr’s probation
was that he pay $365,504.39 in restitution in monthly
installments of “no less than $1,000 . . . or 25% of [his]
income.”
¶3 Until May 2003, the month Orr’s probation was set to
expire, Orr made monthly restitution payments of approximately
$1,000. In that month, however, Orr failed to make his
restitution payment. Because Orr had failed to pay the full
restitution amount, AP&P filed a probation violation report on
May 9, 2003,1 and asked the court to order Orr to show cause as
to why his probation should not be revoked. On May 12, 2003, the
court issued the order to show cause, which was served on Orr on
May 19, 2003.
¶4 Orr moved to dismiss the order to show cause, arguing
that the district court lost jurisdiction to extend his probation
on May 12, when his probation expired. Orr further argued that
the district court did not have jurisdiction over him because
AP&P did not file its report and serve him with notice before his
probation expired. The court, citing Utah Code section 77-18-
1(11)(b) (2003),2 held that the May 9 filing tolled Orr’s

2 (...continued)
show cause or warrant by the court.”
3 At the court of appeals, Orr also argued that any
extension of probation is limited to the length of the original
probationary period. The court of appeals agreed and reversed on
this issue. Orr, 2004 UT App 413, ¶ 15. That issue is not
before us on certiorari.
3 No. 20041057
probationary period and provided it with jurisdiction to extend
Orr’s probation. The district court then extended Orr’s
probation for the full ten-year term of Orr’s suspended prison
sentence.
¶5 Orr appealed to the court of appeals, where he again
raised the notice argument and further argued that the district
court lacked authority to extend his probation because it did not
make a specific factual finding that he willfully violated his
probation terms.3 State v. Orr, 2004 UT App 413, ¶¶ 8, 11, 103
P.3d 164. The court of appeals affirmed the district court’s
holding that the May 9 filing tolled Orr’s probationary period.
Id. ¶ 10. The court of appeals did not determine whether a
written statement of factual findings or a finding of willfulness
was required to extend probation, but instead determined that
even if these rules were applicable to probation extension, the
district court’s order and record demonstrated a sufficient
factual basis to extend Orr’s probation. Id. ¶¶ 11-13.
¶6 We granted certiorari to review the court of appeals’
decision. We have jurisdiction pursuant to Utah Code section 78-
2-2(5) (2002).
STANDARD OF REVIEW
¶7 On certiorari, we review the court of appeals’ decision
for correctness and grant no deference to its conclusions of law.
Allstate Ins. Co. v. Wong, 2005 UT 51, ¶ 12, __ P.3d __. “Our
review extends no further than to determine whether the court of
appeals accurately reviewed the trial court’s decision under the
appropriate standard of review.” Id. (internal quotation marks
omitted).
¶8 In this case, no party has asserted that the court of
appeals applied an incorrect standard of review to either of the
issues before us on certiorari. The court of appeals
appropriately applied a correctness standard of review to the
questions of law and a clearly erroneous standard of review to

No. 20041057 4
the district court’s factual findings. State v. Orr, 2004 UT App
413, ¶ 7, 103 P.3d 164.
¶9 The court of appeals does not, however, set forth the
standard of review for mixed questions of law and fact such as
whether the district court’s factual findings were sufficient to
support the extension of Orr’s probation under the applicable
laws. In a probation extension proceeding, the district court
has discretion “to grant, modify, or revoke probation.” State v.
Jameson, 800 P.2d 798, 804 (Utah 1990). Therefore, to reverse
the district court’s decision in such proceedings, a reviewing
court must determine “that the evidence of a probation violation,
viewed in a light most favorable to the trial court’s findings,
is so deficient that the trial court abused its discretion in
revoking [or modifying appellant’s] probation.” Id. Thus, in
addressing the question of whether there were sufficient factual
findings to support the extension of Orr’s probation, we will
review the district court’s determination for an abuse of
discretion.
ANALYSIS
¶10 In this case, Orr argues that the district court
improperly extended his probation (1) because he did not receive
notice that the State intended to extend his probation until
after his probation was set to expire and (2) because the
district court’s findings were insufficient. Before addressing
these arguments, we must first decide the threshold issue of
whether the due process requirements for probation extension are
coextensive with those provided for probation revocation.
I. AT BOTH PROBATION REVOCATION AND PROBATION EXTENSION
PROCEEDINGS, A DEFENDANT SHOULD BE AFFORDED THE MINIMUM
REQUIREMENTS OF DUE PROCESS.
¶11 The Fourteenth Amendment of the United States
Constitution forbids a state from “depriv[ing] any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. This amendment guarantees both
substantive and procedural due process rights. What constitutes
due process, however, depends upon the type of proceeding and,
more specifically, “the nature of the individual interest
affected, the extent to which it is affected, the rationality of
the connection between legislative means and purpose, [and] the
existence of alternative means for effectuating the purpose.”
Beardon v. Georgia, 461 U.S. 660, 666-67 (1983) (alteration in
the original) (internal quotation marks omitted).

4 There are significant differences between criminal trials
and probation violation hearings, such as, “[i]n most cases, the
probationer . . . has been convicted of committing another crime
or has admitted the charges against him.” Gagnon v. Scarpelli,
411 U.S. 778, 787 (1973).
5 Some courts, including the Utah Court of Appeals, have
held that the due process rights applicable to a probation
extension proceeding are commensurate with those applicable to
probation revocation. See State v. Rawlings, 893 P.2d 1063, 1067
(Utah Ct. App. 1995) (holding that a probationer is entitled to
due process protections at a probation extension proceeding);
State v. Korzuch, 920 P.2d 312, 314-16 (Ariz. 1996) (declining to
follow federal cases and holding that due process applies to
extension proceedings because probation imposes obligations upon
the probationer); Cook v. Commonwealth, 176 S.E.2d 815, 817-18
(Va. 1970) (“[F]undamental fairness requires a judicial hearing
of a summary nature for the probation period to be extended,
since increasing the period of probation has the effect of
extending the restraints on the probationer’s liberty which are
normally incident to his probation and extends the time period
during which revocation may occur.”).
5 No. 20041057
¶12 Based on these considerations, the United States
Supreme Court has determined that probation revocation
proceedings, which are not criminal in nature4 and involve only a
conditional liberty interest, are entitled only to the “minimum
requirements of due process.” Gagnon v. Scarpelli, 411 U.S. 778,
786 (1973) (internal quotation marks omitted).
¶13 Neither this court nor the United States Supreme Court
has addressed the question of whether a defendant in a probation
extension proceeding is entitled to the same rights as a
defendant in a probation revocation proceeding. Clearly, a
defendant in an extension proceeding is not entitled to greater
due process rights, because at such a proceeding we are not
dealing with the immediate, “grievous loss of liberty implicated
in a revocation of probation,” but instead with a mere
continuation of probationary restrictions and the “possibility of
future revocation.” United States v. Ortiz, 733 F.2d 1416, 1417-
18 (10th Cir. 1984).
¶14 What is less clear, however, is whether a defendant is
entitled to any due process rights at an extension proceeding.
Many jurisdictions have held that due process protections do not
attach to probation extension proceedings.5 Skipworth v. United
States, 508 F.2d 598, 601-02 (3d Cir. 1975) (holding that due
process does not require notice and hearing for a probation

No. 20041057 6
extension because the loss of liberty is “merely potential”);
United States v. Carey, 565 F.2d 545, 547 (8th Cir. 1977) (“[A]
mere noncustodial period of supervision to a term within the
statutory limits [does not] implicate[] a liberty interest
sufficient to require a pre-extension hearing as a
constitutionally commanded right.”); United States v. Cornwell,
625 F.2d 686, 688 (5th Cir. 1980) (“[E]xtension of a non-
custodial period of supervision to a term within the statutory
limits (does not) implicate a liberty interest sufficient to
require a preextension hearing as a constitutionally commanded
right.” (internal quotation marks omitted)); Forgues v. United
States, 636 F.2d 1125, 1127 (6th Cir. 1980) (holding ex parte
extension did not offend due process because “[p]robation . . .
is a non-custodial supervisory period far less onerous to the
probationer than the incarceration which results from the
revocation of probation”); United States v. Silver, 83 F.3d 289,
291-92 (9th Cir. 1996) (holding probation extension does not
result in “a liberty interest [being] so infringed as to require
this court to call for additional protections as per the Due
Process Clause”). But many of these same courts have invoked
their supervisory power to require that the probationer receive
notice of the extension hearing and be advised of a right to a
hearing and to counsel. Skipworth, 508 F.2d at 602-03 (requiring
notice of proposed extension and right to hearing and counsel);
Cornwell, 625 F.2d at 689 (invoking supervisory powers to require
courts to notify probationers of proposed extensions and right to
a hearing); Forgues, 636 F.2d at 1127 (same). Contra Carey, 565
F.2d at 547 (declining to use supervisory power to require a
probation extension hearing).
¶15 One of the justifications offered by these
jurisdictions for not extending due process rights to extension
proceedings is that the factual inquiry in extension proceedings
is “quite different” than that in revocation proceedings.
Skipworth, 508 F.2d at 602; accord Silver, 83 F.3d at 292; Carey,
565 F.2d at 547. Specifically, in revocation proceedings a court
must “resolve a contested factual determination . . . [and]
decide whether there was, in fact, a violation of probation.”
State v. Smith, 769 A.2d 698, 705 (Conn. 2001). In contrast, in
most extension proceedings, a court may extend probation without
finding that any probation violation occurred. Id.
¶16 In Utah, however, Utah Code section 77-18-1 (the
“Probation Statute”) requires a court to hold a hearing in order
to extend, modify, or revoke probation, unless that right is
waived, and to find that the probationer has violated the terms
of probation. See Utah Code Ann. § 77-18-1(12)(a) (Supp. 2005).
Because our Probation Statute requires a hearing (and a probation

7 No. 20041057
violation) to extend probation, we require that the hearing be
conducted in accordance with the “minimum requirements of due
process,” commensurate with those applicable to revocation
proceedings. Having determined that a probationer must be
afforded the minimum requirements of due process at a probation
extension proceeding, we now turn to Orr’s arguments that his
extension proceeding did not meet those requirements.
II. THE DISTRICT COURT PROPERLY EXTENDED ORR’S PROBATION EVEN
THOUGH HE DID NOT RECEIVE NOTICE UNTIL AFTER HIS PROBATION WAS
SET TO EXPIRE.
¶17 The first argument raised by Orr is that his due
process rights were violated because he did not receive notice of
the State’s intent to extend probation prior to the expiration of
the original probationary term. We hold that due process does
not require such notice and that Orr was properly notified of the
State’s intention to seek probation extension.
¶18 Generally, a “court’s power to grant, modify, or revoke
probation is purely statutory.” Smith v. Cook, 803 P.2d 788, 791
(Utah 1990). In Utah, the procedures that a court must follow to
extend a defendant’s probation are set forth in the Probation
Statute, Utah Code section 77-18-1 (Supp. 2005). The current
version of the Probation Statute provides, in pertinent part,
that a term of probation may terminate, by operation of law,
“upon completion without violation of [the requisite number of]
months probation.” Id. § 77-18-1(10)(a)(i). It further
provides, “[t]he running of the probation period is tolled upon
the filing of a violation report with the court alleging a
violation of the terms and conditions of probation or upon the
issuance of an order to show cause or warrant by the court.” Id.
§ 78-18-1(11)(b).
¶19 Orr does not dispute that the tolling provision gave
the district court statutory authority to extend his probation,
but instead argues that due process demands that a probationer
receive notice of the State’s intent to extend probation prior to
the expiration of the original probationary term. We disagree.
¶20 As discussed above, in a probation modification
proceeding, a probationer is entitled only to the “minimum
requirements of due process.” These requirements include
(a) written notice of the claimed violations
of [probation]; (b) disclosure to the
[probationer] of evidence against him; (c)
opportunity to be heard in person and to

No. 20041057 8
present witnesses and documentary evidence;
(d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer
specifically finds good cause for not
allowing confrontation); (e) a neutral and
detached hearing body . . .; and (f) a
written statement by the factfinders as to
the evidence relied on and reasons for
revoking [probation].
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (internal quotation
marks omitted). The probationer also has the right to the
assistance of counsel in some circumstances. Black v. Romano,
471 U.S. 606, 612 (1985).
¶21 Nowhere in these requirements is a probationer required
to be given notice prior to the expiration of the original
probation term. Orr relies, however, on a series of cases from
this jurisdiction—-State v. Green, 757 P.2d 462 (Utah 1988);
Smith v. Cook, 803 P.2d 788 (Utah 1990); and State v. Call, 1999
UT 42, 980 P.2d 201—-which he claims stand for the proposition
that due process requires a probationer to receive notice of the
State’s intent to extend probation prior to the date probation is
set to expire.
¶22 This reliance is misplaced. None of these cases stands
for the proposition that due process requires a probationer to
receive notice prior to the expiration of probation. In fact,
neither Green nor Call held that notice is required prior to the
expiration of the original probationary term. In Green, we
merely held that probation revocation proceedings must be
initiated before the expiration of the probationary period. 757
P.2d at 464-65. That holding is consistent with the requirement
here that a probation violation report must be filed prior to the
probation expiration. In Call, we did not need to decide when a
probationer must receive notice because we found that Call had
received notice prior to the expiration of probation. 1999 UT
42, ¶ 12 (holding that signing a waiver of personal appearance is
sufficient notice).
¶23 Smith is the only case Orr relies on that holds that a
probationer is entitled to notice prior to expiration of
probation. And neither it nor any of the other cases Orr relies
on was decided on due process grounds. In both Green and Smith,
the court’s holding was based on its construction of an earlier
version of the Probation Statute, which did not include the

6 Smith and Green applied Utah Code section 77-18-1 (Supp.
1981) and Utah Code section 77-18-1 (Supp. 1984) respectively.
See Green, 757 P.2d at 462; Smith, 803 P.2d at 793-94. The
tolling provision was added to the Probation Statute in 1989.
Probation Amendments, ch. 226, § 1, 1989 Utah Laws, 689, 690
(effective April 24, 1989).
9 No. 20041057
tolling provision.6 See Green, 757 P.2d at 465 (stating that
approaches for retaining jurisdiction over revocation proceedings
after the original probationary term has expired are “largely a
function of the statutory language of each state”); Smith, 803
P.2d at 793 (“We . . . hold that under the statute applicable to
Smith’s case, the trial court lacked the authority to revoke
Smith’s probation . . . .” (emphasis added)). The only case that
even mentions due process is Smith, which states that a
requirement that notice be given prior to the probation
expiration is in “accord” with the due process requirements. 803
P.2d at 795. This statement does not demonstrate that such a
requirement was the minimum mandated by due process, but rather
that it was within the scope of due process requirements for
probation revocation proceedings. Moreover, the court in Smith
expressly recognized that its holding may not be applicable to
the amended versions of the Probation Statute, which contain the
tolling provision. Id. at 796 n.40.
¶24 In Call, the only case Orr cites that interprets a
version of the Probation Statute with the tolling provision, we
stated in dicta that Green and Smith
instruct that if it is the intent of the
State to extend the probationary period
beyond its original term, the State must take
definitive action to extend the term before
the expiration date, and the probationer must
be given notice of that intent. Otherwise,
the probationer is left in a state of
uncertainty, not knowing whether to continue
to observe the terms of his probation.
1999 UT 42, ¶ 11.
¶25 To the extent that this language implies that due
process requires a probationer to receive notice of a State’s
intent to extend probation, it is more restrictive than the due
process requirements set out by the United States Supreme Court

7 There is nothing in Utah’s Constitution that suggests that
it provides greater due process protection than the United States
Constitution and, in fact, both due process provisions utilize
nearly identical language. Compare U.S. Const. amend. XIV, § 1
(“No State shall . . . deprive any person of life, liberty, or
property, without due process of law.”), with Utah Const. art. I,
§ 7 (“No person shall be deprived of life, liberty or property,
without due process of law.”).
8 The version of the Probation Statute applicable to Orr is
Utah Code section 77-18-1 (2003). Although the Probation Statute
has been amended since then, Act of ___, 2005, ch. 14, § 3, 2005
Utah Laws __, the changes do not affect our analysis here.
No. 20041057 10
in Gagnon7 and inconsistent with the applicable version of the
Probation Statute.8 Furthermore, the statement in Call that a
probationer will not know whether to continue the terms of his
probation does not raise substantive due process concerns because
the probationer’s rights are adequately protected by the rule
that a probationer must have adequate notice of what conduct is
required to maintain his probationary status. See State v.
Hodges, 798 P.2d 270, 277 (Utah Ct. App. 1990) (holding that “a
probationer [must] be clearly and accurately apprised of the
expectations for remaining on probation”). In other words, if a
probationer mistakenly believes that his probation has expired
(because he has not received notice of the State’s intent to
extend probation) and, as a result of that belief, violates a
term of his probation, a court generally could not further extend
or revoke the probation based on that violation.
¶26 For a notice to meet the minimum requirements of due
process to which a probationer is entitled in an extension
proceeding, the defendant need not receive notice before the
original probationary term expires. He need merely receive
notice of the accusations against him and the notice must provide
him an adequate opportunity to prepare a response to those
accusations. In this case, it is clear that the minimum
requirements of due process were met. Orr does not dispute that
he received notice of the accusations against him or that the
notice gave him an adequate opportunity to prepare a response to
those accusations. And, in fact, more than a month before the
extension proceeding, Orr received written notice that a
probation violation report had been filed and that a hearing
would be held. Instead, Orr’s only argument regarding notice was
that he did not receive it prior to the expiration of his
original probationary term. As neither due process nor Utah’s
Probation Statute require such notice, we conclude that the
district court had authority to extend Orr’s probation.

11 No. 20041057
III. THE DISTRICT COURT’S FINDINGS WERE SUFFICIENT TO EXTEND
ORR’S PROBATION.
¶27 Orr next argues that the district court’s findings were
inadequate to support the extension of his probation for two
reasons: (1) in its written order, the district court did not
expressly find that Orr violated his probation and (2) the
district court did not find that Orr’s probation violation was
willful.
¶28 The Probation Statute provides that “[p]robation may
not be modified or extended except upon waiver of a hearing by
the probationer or upon a hearing and a finding in court that the
probationer has violated the conditions of probation.” Utah Code
Ann. § 77-18-1(12)(a)(i) (2003). After a hearing to extend
probation, “the court shall make findings of fact.” Id. § 77-18-
1(12)(e)(i). Nowhere in the Probation Statute is the district
court required to make written findings of fact or to find that
such violation was willful. See id. § 77-18-1.
¶29 We therefore focus our analysis on whether due process
requires a district court to make written findings of fact or to
find that a defendant has willfully violated the terms of his
probation. We will address each of these issues before turning
to the question of whether the district court’s findings were
sufficient to support its extension of Orr’s probation.
A. The Record Must Reflect the Evidence Relied on and the Reasons
for Extending Probation.
¶30 One of the “minimum requirements of due process” is
that a defendant receive “a written statement by the factfinder
as to the evidence relied on and the reasons for revoking
probation.” Black v. Romano, 471 U.S. 606, 612 (1985); Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973); United States v. Gilbert,
1995 U.S. App. LEXIS 33744, *7-8 (10th Cir. Dec. 4, 1995)
(unpublished opinion).
¶31 Because the purpose of the written statement
requirement is to provide a basis for review and encourage
accurate factfinding, Black, 471 U.S. at 613-14; Gilbert, 1995
U.S. App. Lexis 33744, at *7-8, a transcribed oral finding or
district court order is sufficient to meet that requirement so
long as it enables the reviewing court to determine the basis of
the district court’s decision. See Gilbert, 1995 U.S. App. Lexis
33744, at *7-8; accord Morishita v. Morris, 702 F.2d 207, 210
(10th Cir. 1983) (“We hold that written findings are

No. 20041057 12
constitutionally required only if the transcript and record
before the judge do not enable a reviewing court to determine the
basis of the judge’s decision to revoke probation.”); Morishita
v. Morris, 621 P.2d 691, 693 n.2 (Utah 1980) (holding that
findings were sufficient despite a lack of express written
findings because the transcript revealed “the judge’s thought
process and the conclusions he drew from the evidence”).
¶32 We now turn to the issue of whether the district court
was required to find that a probation violation was willful.
B. A Court May Extend Probation if it Finds That a Probationer
Willfully Failed to Pay Restitution or That Alternative Means of
Punishment Are Inadequate to Punish or Deter.
¶33 The United States Supreme Court has recognized that a
defendant’s probation, in some instances, may be revoked
regardless of whether the defendant is at fault for violating the
terms of his probation. See Bearden v. Georgia, 461 U.S. 660,
669 n.9 (1983); see also United States v. Warner, 830 F.2d 651,
657 (7th Cir. 1987) (“If . . . probation’s purposes have been
frustrated, revocation is fair and appropriate even if the
probationer did not willfully violate his probation
conditions.”). Failure to pay restitution is not one of those
instances. Beardon, 461 U.S. at 668. The fundamental fairness
requirement of the Fourteenth Amendment forbids the revocation of
probation when a probationer has failed to pay restitution or a
fine through no fault of his own. Id.
¶34 To revoke probation for failure to pay restitution, a
court must find that the probationer willfully refused to pay or
that he failed to make sufficient bona fide efforts to seek
employment or borrow money. Id. If, however, a court finds that
a “probationer has made all reasonable efforts to pay the fine or
restitution, and yet cannot do so through no fault of his own,”
the court must consider “whether adequate alternative methods of
punishing the defendant are available.” Id. at 668-69. Then,
“[o]nly if alternative measures are not adequate to meet the
State’s interests in punishment and deterrence[,] may the court
imprison a probationer.” Id. at 672; 21A Am. Jur. 2d Criminal
Law § 908 (1998).
¶35 It is not clear whether the willfulness requirement
applies to the mere extension of probation for failure to pay
restitution. We do not need to decide that issue here, however,
because, as we discuss below, we find that the district court
made sufficient findings of fact to support the extension of
probation even under the standard for revoking probation. We now

9 Utah Code section 77-18-1(10)(a)(ii) (2003) provides that
when a probationer is unable to pay full restitution before the
expiration of the probationary term, “the court may retain
jurisdiction of the case and continue the defendant on bench
probation for the limited purpose of enforcing the payment of the
account receivable.”
13 No. 20041057
turn to the issue of whether the district court made findings of
fact sufficient to support its extension of Orr’s probation.
C. The District Court Made Findings of Fact Sufficient to Support
Its Extension of Orr’s Probation.
¶36 Applying the above rules to the facts of this case, we
hold that the district court had authority to extend Orr’s
probation and that it did not abuse its discretion in doing so.
First, although the district court did not specifically designate
a portion of its order as written findings of fact, the record
adequately reflected the evidence the district court relied on
and its reasons for extending probation. It is clear from the
record that the district found that Orr had violated the
condition of his probation requiring him to pay restitution to
his victims. For example, at the hearing the district court
stated that Orr “hasn’t paid a nickel on his restitution since he
thought probation was over.” Then, in its written order, the
district court stated
The defendant’s failure to pay the May and
June installments of his restitution
underscores the fact that the defendant is
induced to repay his victims only when he is
in the shadow of probation and the threat of
incarceration is held over him.
¶37 Second, although the district court did not explicitly
find that Orr’s violation was willful, such a finding was
implicit from its order, which stated that “[Orr] is induced to
repay his victims only when he is in the shadow of probation and
the threat of incarceration is held over him” and “[Orr’s] only
incentive to continue making restitution payments is to avoid his
probation being revoked.” This language further shows that the
court determined that other alternatives for punishing Orr were
inadequate. Although it could be argued that the district
court’s failure to mention the possibility of bench probation9
demonstrates that it did not consider other alternatives, in
Black, the Supreme Court held that a district court is not
required to explain on the record its consideration and rejection
of alternatives to incarceration. 471 U.S. at 616.

No. 20041057 14
¶38 We therefore hold that the district court did not abuse
its discretion in extending Orr’s probation.
CONCLUSION
¶39 The district court properly extended Orr’s probation.
First, neither due process nor Utah’s Probation Statute requires
a defendant to receive notice of the State’s intent to extend
probation prior to the expiration of the original probationary
term. Therefore, even though Orr did not receive notice until
after his original probation term had expired, the district court
had statutory authority to extend Orr’s probation because the
probation violation report was filed within the probationary
term.
¶40 Second, the district court did not abuse its discretion
in extending Orr’s probation. The hearing transcript and the
district court’s order were sufficient to meet the written
statement requirement. Furthermore, the language of the written
order implies that Orr’s violation was willful and that
alternatives to extending his probation were inadequate. We
affirm.
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¶41 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.