Confinement in Response to Violations (CRV) and Limits on Probation Revocation Authority

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When analysts from the Council of State Governments studied North Carolina’s sentencing laws and correctional system, one of their key findings was that revoked probationers account for a lot of new entries to prison each year—more than half. The Justice Reinvestment Act (S.L. 2011-192) responds to that finding in several ways, one of which is limiting the amount of a time a probationer can be imprisoned for certain violations of probation.

Under the new law, for probation violations occurring on or after December 1, 2011, the court may not revoke probation for violations of conditions other than the “commit no criminal offense” condition set out in G.S. 15A-1343(b)(1) or the new statutory “absconding” condition set out in G.S. 15A-1343(b)(3a). (The absconding condition is a new regular condition for offenders on probation for offenses that occur on or after December 1, 2011. S.L. 2011-192, sec. 4.(d), as amended by S.L. 2011-412, sec. 2.5.) For other violations, the court may impose a period of “confinement in response to violation” under new G.S. 15A-1344(d2). I’ll refer to that confinement period in this post and in other publications as a “CRV” period (Confinement in Response to Violation). Others have termed it a “dunk.” Whatever you call it, it’s useful to have a terminology that makes clear than confinement under G.S. 15A-1344(d2) is different from other short-term confinement periods, like a “split” (special probation) or a “quick dip” (a short-term confinement option under new G.S. 15A-1343(a1)(3) that I’ll write about in my next post).

For felons, the CRV period is a flat 90 days. For misdemeanants, the CRV period is “up to 90 days.” The law goes on to say, however, that if the time remaining on the defendant’s sentence is 90 days or less, the CRV period “is for the remaining period of the sentence.” Because the vast majority of misdemeanor sentences are 90 days or less, a CRV period for a misdemeanant will almost always use up the defendant’s entire suspended sentence—making it look like a revocation. (There is some argument that the 90-days-or-less remaining caveat only applies to felonies. It uses the term “maximum imposed sentence,” which does not fit perfectly with the  misdemeanor sentencing law.)

A defendant may only receive two CRV periods in a particular probation case. After that, the court can respond to future violations by revoking probation, even if the alleged violation is something other than a new crime or absconding. Conversely, the court is never allowed to impose CRV in response to a new criminal offense or absconding; for those violations, the court can either revoke probation or modify it in all the ways it can under existing law.

To sum up the rules, for probation violations that occur on or after December 1, 2011, the court can revoke probation for violations of the “commit no criminal offense” condition, violations of the new statutory “absconding” condition, and for defendants who have previously received two CRV periods. The court is never required to order CRV; it can always respond with other modifications like a split sentence, electronic house arrest, or a curfew, to name a few. That said, you can probably see that the State and the court may, in some cases, be drawn to CRV in response to early violations to set the table for a future revocation.

CRV confinement is similar to special probation, but it isn’t a split. For instance, it is not subject to the one-fourth rule of G.S. 15A-1351(a) or G.S. 15A-1344(e). Also, there is no clear statutory provision for appealing a CRV period. Under G.S. 15A-1347 and existing case law, there is no right to appeal probation matters other than activation of a sentence or imposition of special probation. State v. Edgerson, 164 N.C. App. 712 (2004) (“Defendant’s sentence was neither activated nor was it modified to ‘special probation.’ Defendant therefore has no right to appeal.” (citations omitted)). Perhaps there is an argument that CRV is an “activation” (or at least a partial activation) of sorts, and so it is appealable under G.S. 15A-1347.

There are some additional rules for CRV confinement. First, if a defendant is detained in advance of a violation hearing at which CRV is ordered, the judge must first credit that confinement time to the CRV period, with any excess time to be applied to a later-activated sentence. In other words, the court may not bank the pre-hearing credit the way it can when it orders a split sentence under G.S. 15A-1351. Second, when a defendant is on probation for multiple offenses, the law requires CRV periods to run concurrently on “all cases related to the violation.” Confinement is to be “immediate unless otherwise specified by the court.” The idea behind those provisions is that CRV periods for multiple cases should not be “stacked” to create a confinement period of longer than 90 days. Finally, the law specifies that CRV periods are served “in the correctional facility where the defendant would have served an active sentence.” I described the new rules for determining a defendant’s proper place of confinement in this prior post.

In every session I’ve taught about these new limitations on a court’s authority to revoke probation, I’ve been asked the same question: What about defendants who want to “invoke” their sentence (or “elect to serve” or whatever you might call it)? Can they still do that after Justice Reinvestment? As discussed here, the statutory provision allowing a probationer to “elect to serve” was repealed in the mid-1990s. A probationer can, however, admit to a violation, and then the court can revoke probation based on that. Under the new law, it seems that admissions will need to be to a new criminal offense or absconding in order to empower the court to revoke.

21 comments on “Confinement in Response to Violations (CRV) and Limits on Probation Revocation Authority

  1. What about violation reports in which violations span before and after December 1, 2011? Does the court act under old law or new law?

  2. I think the court will need to parse out the violation dates and treat the pre-December 1 violations under the old law and the post-December 1 violations under the new law.

    • Can someone please tell me the course of action if a person that does NOT qualify for CRV but is sentenced to it anyway?

      (Convicted before and violated probation BEFORE the new law)

      • Mark: The original conviction date doesn’t matter, but it’s incorrect for CRV to be imposed for a violation before 12/1/11. It probably could be corrected through motion for appropriate relief as an improper sentence. Note that for pre-12/1/11 violations the defendant could have been revoked for any violation–so CRV, even if improper, was better (from the defendant’s perspective) than what could have happened.

  3. My boyfriend, on December 26, 2011, was arrested for ‘absconding’ in which was completely false because the day the charge was filed, he was in his probation officer’s office but had to leave on account of work even though she was in a meeting. She saw him in her office that day but submitted the charge that evening. He had called her office back in efforts to set up another appointment and she never returned his phone call (this was in November). After his arrest for absconding he had his court date and the judge activated his entire sentencing of 3 years and 7 months for an absconding charge that was inaccurate. Is this unlawful? We have set a motion for appeal and are waiting for a court date but do we have a chance at fighting this, does this law pertain to any of that?

  4. Hi Iam in NC and my grandson has had a bout with law. He was convicted of a B&E at age 17 with he got probation for. Being with the wrong crowd he was convicted again for procession of a fire arm by felon and was put on the ankle monitor for 90 days and 44 months probation. Which ended up violating first charge(B&E) and he had to serve a 6-8 month sentence. While serving that suspended sentence a charge was brought against him for having a fire arm before he received the ankle monitor. Now instead of coming home they have sent him from from the place of the suspended sentence to the county to anwser charge. My question is can we get that charge to run concurrent with the ankle monitor or will they try to convict him as a new charge and violate the ankle monitor even though it happen before the probation. please help he after being arrested for the charge with the ankle monitor he cleaned himself up. While waiting to see if he would be violated for the 1st charge he got a full time job, went back to college and stayed away from bad company please help

  5. My boyfriend was just sentenced to a 90 day CRV and is saying he might be getting sent to central prison in Raleigh instead of staying in Buncombe county, i was just curious to why he is saying that he probably won’t be allowed visits or me to send him things like pictures. All this is new to me and im trying to figure out how this sentence is going to go. Anyone who can explain any of this to me would be great! Thank you!

    • I just read your post my boyfriend was sentenced to 90 days crv how much of that time will he serve l would really appreciate any kind of information. Did he participate in any programs or work to get time reduced is it allowed?

  6. If a defendant pleads guilty to two felonies and receives a 12 month suspended sentence for each count and while on probation he receives two 90 day CRVs. In which, the Court revokes his probation and actives his sentence. Does the defendant get a 180 days of credit for both sentences or only one? Thank You!

    • Adren Harris: It seems to me that the person would get 180 days of credit toward both sentences–regardless of whether those sentences wound up being run concurrently or consecutively upon revocation. I discuss that briefly on p. 69 of the Justice Reinvestment book.

  7. I have an upcoming probation violation hearing next week for (1) commit no criminal offense in any jurisdiction (recd new charge) and (2) not to have contact with victim.

    The new charge and probation violations are set on the same date. What should I ecpect? Will the judge automatically revoke my probation due to the new charge?

  8. Hi, I’m on 30 months probation for a felony offense. I’ve completed almost 11 months. I’m on an anckle bracelet and 6 o’clock curfew. Last night I cut my neck and was taken to the hospital around 3 AM. I was released at about 2 o’clock this afternoon. My mother left a text message about what happened and so did my girlfriend. I had drank a small amount of alcohol but was not drunk. My shrink has recently changed my medications and I think that was the reason for the matter. Can my probation officer violate me for this reason? Please write back and tell me what I should be looking forward to. Thank You in advance!

  9. In 2010 was charged with 2 duis,in two different counties,plead guilty to both,getting a combined sentence of 3 years,suspended,w/probation. I’ve done 1 crv,and 6 months other time,equaling 9 months. I was violated for not paying fines. When I got done with CRV, 12 months probation was added,and $1500 a month is expected. I was wondering about how much more time i would be facing,if I wasn’t able to make payments. Since dwi conviction wAS in 2010,wouldn’t my sentence still be cut in half? I don’t know anyone that could pay $1500 a month,and my P.O. won’t answer any questions..Thanks in advance

  10. I have an upcoming probation violation hearing next week for (1) commit no criminal offense in any jurisdiction (recd new charge) and (2) not to have contact with victim.

    The new charge and probation violations are set on the same date. What should I ecpect? Will the judge automatically revoke my probation due to the new charge?

  11. So for someone violating probation and an absconder (who missed a court date) he would simply do no more than 90 days if he turned himself in?

    What about someone that absconds and leaves the state with no intention of returning ?

  12. I just finished my CRV and let me tell you if your in NC plan on being shipped to ODOM CI its a nasty prison filled with rats and roaches. This place is listed at condemed and closed online. this place will break you of violating agian that is for sure

  13. Hey everyone,
    I am a bit confused on the “special probation” and “split sentence” when being referenced with felony probation, CRV, etc. From what I read a probationer can be eligible for a CRV so long as the violation WAS NOT in response to committing a new offense or absconding is that correct? It also said the court may not revoke probation and activate the sentence unless a new offense was committed or abounding from probation? Does this mean if a new offense is committed while on probation, the only outcome is revocation and prison? Or are there other options for punishment the judge may use? Does the court have the ability to weigh individual cases, circumstances, mitigating and aggravating factors, and how the individual has complied with his/her probation? When the “split sentence” and “special probation” were mentioned was it pertaining to felony probation violations due to condition 1? Can a sentence other than activation be handed down in these circumstances? Is it possible for the court to impose a split or modified sentence with an extended and/or more restrictive probation, fine, community service, etc ? Or is revocation the only recourse for a condition ! violation? Thank you so very much for taking the time to read this. Any response would be much appreciated!

  14. Hey everyone guick question. If you are on felony probation and get a violation for condition 1 for a new misdemeanor conviction is the only action by the court a revocation and sentenced to prison? Can they issue any other form of punishment? Say for instance a person has done exceptionally well on probation but made a poor decision can they get a second chance? It is a superior court violation I’m referring too. From what I read I’m taking it that a crv isn’t eligible for a condition 1 or absconding violation, does this mean that the court can’t give any other sentence? I’m confused on this so if anyone can reply on this it would be greatly appreciated. Thank you!

  15. I have a question if my fiance`got CRV(90 days) and he was in the county jail they then moved him to Craven CI does his 90 days start once he was at CCI or will he get credit towards CRV for the 2 weeks he was in the county jail?

  16. hey I got a question about my sentencing as well. I was givin a 18mths intensive probation for a mistomenor simple pos. marijuana as a new charge cuz I was already on a 12mth probation. also for simple pos. marijuana , but I absconded my recent 18mth probation for about a year then got pulled over speeding(ofcourse) and the cop brought me to Sampson county jail to hold me until wake county could come get me. I served a week in Sampson an posted bond soon as I got to wake. they gave me a court date witch I had missed because they spelled my name wrong in the system so when I called they said I didn’t have court? fucked up as hell I kno. but so now I have a warrant again for FTA wich about to turn myself in for. already been like 2mths on this warrant, but my sentence was 45days DOC as they said so I did a week timed served so I have like 38days left but im worried there going to try an pull some BS an give me more time for absconding. is that possible for them to do that? its a simple mestomenor ive never had a felony im typically an all around good kid only reason I didn’t turn myself in the first place is because I was scared to detox off my methadone witch if anyone knos is excruciating pain…. witch to me is a ligitamate reason… idk. but will they jus revoke it an make me do the 38days or can they give me 90? please help! Im going today:/

  17. Can you get a crv or split sentence after absconding or is it revoking the only thing? And the original charge was before Dec. 1 2011 but probation didn’t start till after?

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