PROBATION VIOLATIONS

 

At Garrett, Walker & Aycoth, we pride ourselves on our zealous advocacy when it comes to both Misdemeanor and Felony Probation Violations. Anyone sentenced to Probation is given a number of Conditions which they must comply with, and a Willful Failure to do so will result in a Violation of Probation. District and Superior Court Judges have a number of options as to what to do with the violations, they can do nothing and keep the conditions the same, they can give a Split Sentence, Place on House Arrest, hand out a Confinement in Response to Violation of Probation (CRV), Terminate Probation or Revoke Probation. Probation cases are vitally important to our firm because we realize just how much is at stake with each of these cases, hence the reason for this Probation Violation framework.

A Probation Violation typically begins with a Probation Officer filing a Violation Report (DCC-10) with the clerk. NCGS 15A-1345(e) is clear that the Probation Officer must give the Probationer “Notice of the Hearing and its Purpose, including a statement of Violations alleged…at least 24 Hours before the Hearing,” unless the Probationer Waives their right to Notice. The DCC-10 Form serves as the required Notice to the Probationer, and Probation should ONLY be Revoked based on the Violations alleged in the Violation Report. State v. Cunningham, 63 NC App. 470 (1983).

A Probation Officer or Law Enforcement Officer may Arrest a Probationer for Violating a Condition of Probation, upon a Valid Order for Arrest or upon Written Request from the Probation Officer, with a Violation Report. NCGS 15A-1345A. Probation Officers may arrest Probationers without a Written Order or Motion when they have PROBABLE CAUSE to Believe a Violation of Probation has occurred. State v. Waller, 37 NC APP 133 (1978).

Upon Arrest, a Probationer arrested for a Violation of Probation must be taken before a judicial official to have conditions of release set WITHOUT UNNECESSARY DELAY. NCGS 15A-1345(b). The Judicial Official must also make a determination as to whether the Probationer has committed a prior Sex Crime and whether or not the Probationer poses a Danger to the Public. If the Judicial Official finds that the Probationer poses a Danger to the Public, the Probationer MUST be given NO BOND. The Probationer found to be a Danger will be denied Release until their Probation Violation Hearing. If the Probationer has Not Committed a Prior Sex Offense and the Judicial Official finds that they DO NOT POSE A DANGER TO THE PUBLIC, then Bond is set as usual.

Our Lawyers Handle Probation Violation Hearings in Greensboro, High Point & Asheboro.

One of the first things we look at when it comes to a Probation Violation is the Date the Probation Violation was filed. If the Violation was filed within the Period of Probation the Courts have Jurisdiction to hear the case. However, if the Probation Violation was filed after the Period of Probation Expired, the court may not have Jurisdiction to hear the case, and the Probation Violation should therefore be Dismissed. State v. Camp 229 NC 524 (1980). Only in certain situations may a Probation Violation be heard after the Period of Probation has expired:

  • The Probation Violation was filed before the Period of Probation Expired,
  • The court finds that the Probationer violated Probation before the Expiration of Probation, AND
  • With GOOD CAUSE SHOWN, the Court finds that the Probation should be Extended, Modified, or Revoked.
If a Period of Probation Expires before a Probation Violation is File Stamped, the Court will lack Jurisdiction (Subject Matter Jurisdiction) over the case. State v. Camp 229 NC 524 (1980). Also, if a Probation case had been Extended at an Earlier Point in Time and that Extension was done so Improperly, the court again loses authority to act on the case. State v. Satanek 190 NC APP 653 (2007).

One of the Issues we run into regularly with Probation Violations is this issue of Tolling. Most feel that once their Original Period of Probation has expired, they’re finished with Probation. Tolling means that if a Probationer receives a NEW CHARGE, the Clock Stops when it comes to their Probation Sentence. What this means is that a Probationer on Probation for 36 Months, set to get off of Probation next month, but picks up a new charge, their Probation clock stops until that charge is resolved and their Probation will not end in the next month.

This law was altered in December of 2011 with the Justice Reinvestment Act. For Probationers placed on Probation on or after December 1, 2011, Tolling no longer exists. However, for those placed on Probation BEFORE December 1, 2011, Tolling still applies to their cases. The only charges which do not TOLL Probation are Class 3 Misdemeanors. If a PROBATION case is TOLLED for a new charge, and the Probationer ends up being Acquitted or the charge ends up being Dismissed, the Probationer will be given credit back toward his Probation for the Tolled Period.

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