Comments on: Probation Violations Arising During a Tolled Period

By: Rob

Rob — Mon, 10 Dec 2012 20:37:01 +0000

So let’s assume a very hypothetical defendant commits an offense in June 2009, is put on 30 months probation in February of 2010, then commits a new offense in March of 2011. He is convicted of that new offense in November of 2012. His probation, per the judgment expired in October of 2012. As of today a violation has not been filed. Since the tolling provisions have been written out of the 15A-1344 under Justice Reinvestment, is his probation officer SOL on filing a violation for him? The session bill quoted in this article states that it was applicable to offenses committed on or after December, 2009, so it seems like my hypothetical defendant may have dodged a bullet. Thanks!

By: john

john — Wed, 27 Oct 2010 02:00:37 +0000

could that same evidence be introduced in a criminal jury trial?

By: Jamie Markham

Jamie Markham — Mon, 25 Oct 2010 14:47:31 +0000

sean: I think it could. Class 3 misdemeanors are the only crimes that may not result in revocation. G.S. 15A-1344(d). Reckless driving under G.S. 20-140 is a Class 2 misdemeanor.

By: sean

sean — Sat, 23 Oct 2010 01:37:43 +0000

or speeding over 15mph ncgs 20-141 j1?

By: sean

sean — Sat, 23 Oct 2010 01:36:49 +0000

do you think a reckless driving conviction ncgs 20-140 could result in a violation report and a defendant being revoked?

By: Jamie Markham

Jamie Markham — Fri, 22 Oct 2010 18:26:05 +0000

sean: If this probationer committed his or her offense after December 1, 2009, and was thus subject to the new default warrantless search conditions, law enforcement could search the vehicle upon a reasonable suspicion that the probationer was engaged in criminal activity or possessed a firearm or other deadly weapon. Even if the search were improper, under State v. Lombardo, 74 N.C. App. 460 (1985), the exclusionary rule does not apply at probation revocation hearings, and so the evidence could potentially be introduced. That’s not the rule in all jurisdictions, but it appears to be the law in North Carolina.

By: sean

sean — Wed, 20 Oct 2010 03:42:59 +0000

could evidence seized from a defendant that was on probation be introduced in a probation violation hearing if that evidence was found by a city police officer that lacked reasonable suspicion to search the defendants vehicle? this question is in reference to NCGS 15(a)-1343(b)(14).

By: Jamie Markham

Jamie Markham — Mon, 18 Oct 2010 19:21:01 +0000

anna: I think those cases are about two different things. Duncan is a case about the standard of proof at a probation violation hearing. It says, essentially, that a violation hearing does not have to have all the procedural trappings of a criminal trial. Specifically, probation violations need only be proved to the judge to the judge’s reasonable satisfaction, not to a jury beyond a reasonable doubt.

Hardin is a case about what to do when the only violation of probation alleged by the state is a new criminal charge of which the defendant is acquitted. Hardin says the acquittal on the new charge should also be the end of any probation violation based on that charge.

By: anna

anna — Sat, 16 Oct 2010 02:28:02 +0000

you said in State v. Duncan, 270 N.C. 241 (1967) that all is needed is evidence to show to a judge that the defendant did in fact violate a condition of probation and that you did not need a conviction based on reasonable doubt to violate a defendant. but now im reading State v. Hardin, 183 N.C. 815 (1922).