New Criminal Charges as a Violation of Probation

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It is a regular condition of probation that a probationer must “commit no criminal offense in any jurisdiction.” G.S. 15A-1343(b)(1). The condition is straightforward enough in theory, but it raises some tricky issues in practice.

The main difficulty stems from the question of when a probationer can be said to have “committed” a new criminal offense. Is it when the new charge is brought? Or is it upon conviction of the new crime? In 1960, the Supreme Court of North Carolina said that a pending criminal charge should not serve as the sole basis for revoking an offender’s probation “unless there is a conviction on the pending charge or there is a plea of guilty entered thereto.” State v. Guffey, 253 N.C. 43 (1960) (emphasis added). Read alone, that language would appear to require the State to proceed on a new criminal charge first and reach the related probation violation only in the event of a conviction. Subsequent cases have, however, indicated that a probationer is not entitled to a jury trial on a new charge before probation may be revoked for commission of a new criminal offense. Instead, the court hearing the probation violation can make independent findings—to its reasonable satisfaction—that the offender violated probation by committing a new criminal act. State v. Monroe, 83 N.C. App. 143 (1986). What the court cannot do is determine that a new crime was committed based on the bare fact of the new charge alone.

Even if it is legally permissible to hold a revocation hearing on a new offense before there has been a criminal trial, there may be sound reasons not to. For example, postponement of the revocation matter forestalls any argument that the defendant was forced to waive rights against self-incrimination in the criminal matter by handling the probation matter first. Moreover, the probation laws give the State the tools it needs to wait on the probation violation hearing without fear of losing jurisdiction to act; the tolling provision of G.S. 15A-1344(g) will keep the case open for as long as any new charge is pending. Division of Community Correction policy requires probation officers to discuss new criminal charges with the district attorney and leaves it to the DA to decide whether to proceed with a violation hearing before conviction. DCC Policy V.H.11. Sometimes it will make sense to hold the violation hearing first—which is permissible, although the court should be sure to make independent findings that the criminal act occurred. Even better would be to reserve the violation hearing–first option to cases where there are other technical violations in addition to the new criminal offense.

Suppose the State decides to wait until a probationer has his or her day in court on the new charge before proceeding with a probation violation. If the probationer is convicted, the violation hearing will be simple enough—a conviction is clear evidence that regular condition #1 has been violated. But what if the probationer is acquitted of the new charge? The longstanding black letter rule is that probation should not be revoked on the basis of a new criminal charge of which the probationer has been acquitted. State v. Hardin, 183 N.C. 815 (1922). That does not, however, mean the behavior that led to the charge is entirely off limits as the basis for a probation violation. In State v. Causby, 269 N.C. 747 (1967), for example, a probationer was charged with the crime of possessing intoxicating liquors for the purpose of sale. He was acquitted of that new charge because he didn’t have enough alcohol to satisfy the elements of the offense, but the court nonetheless revoked his probation for violating the condition that he not have any “whiskey, beer, wine, or other alcoholic beverages on his premises for any purpose whatever.” The supreme court upheld the revocation, saying an acquittal on a new charge did not bar a judge from revoking probation based on the facts and evidence underlying that charge, so long as the revoking judge made independent findings that those facts constituted a technical violation.

Finally, no matter when the violation hearing happens, remember that under G.S. 15A-1344(d) probation may not be revoked solely for conviction of a Class 3 misdemeanor.

58 comments on “New Criminal Charges as a Violation of Probation

  1. I have never seen an officer arrest or cite an offender for probation violation based solely on the acquisition of a new pending charge. Rather, pending charges are included along with other violations of probation to provide the court with a better picture of their behavior. a small example, an offender is on probation for dwlr and since being placed on probation the offender has picked up several charges for dwlr. other examples could include an offender placed on probation for charges dealing with drugs or assaults and later picking up similar charges. if these offenders have violated other terms of their probation and picked up similar charges the judge should be informed. if the charges are not on the violation report and the officer attempts to inform the judge the defense will often object. the result of the objection depends on the presiding judge.

  2. As a Chief, I instruct my Officers that if a new charge occurs, they are to immediately review their case for any issues of non-complicance or violation and staff with me at once.

    If the criminal charge included elements that constitute a violation of probation, we word the violation so that we address those elements apart from the charge. For instance, if an Offender is charged with Driving While Impaired, and also has a condition of probation that he “not use or possess alcohol”, we obtain a copy of the law enforcement officer’s report that details the Officer’s observations (i.e. “Subject was unsteady on his feet, eyes were bloodshot and glassy, slurred speech, strong odor of alcohol about their person”). We include the results of any breathalyzer reading as evidence of the violation. But even if the subject refuses the breathalyzer, we base the violation on the Officer’s informed opinion that the subject was under the influence of alcohol. We then state the pending charge under a seperate violation with the language “if the defendant is convicted of this or any lesser included offense, he will be in violation of the condition of probation that he “Commit no criminal offense.” That way, if the charge is reduced or dismissed due to a technicality or plea arrangement, the other elements of the violation will stand. I’m sure this is the practice by the majority of Officers and Chiefs.

    I agree that no Offender should be arrested or even cited for violation for merely being charged with a criminal offense that doesn’t include any other elements of violation. This would be a presumption of guilt. However, a new charge is a perfect justification for increased contacts,, such as additional home visits and office visits, to look for underlying causes for the behavior, such as family or marital conflict, financial setback, such a loss of job, pending forclosure, or family illness. If ordered, additional drug screens and searches may reveal a previously hidden substance abuse problem. In this way, we can use a new criminal charge, even a minor one, as an opportunity to be proactive in addressing the offender’s needs and assessing risk.

  3. I have arrested an offender for probation violation based solely on the acquisition of a new pending charge! The probationer, a registered sex offender, was charged with 36 counts of new sex offenses. A formal hearing was conducted whereby the investigating detective was called to testify as to the evidence that led to the offender being charged and arrested. The court hearing the probation violation made the following finding: “I am reasonably satisfied based on the evidence presented that the offender did violate his probation…” The case was revoked. It is important to remember that the burden of proof at probation violation hearings is a “preponderance of the evidence” standard where the prosecution must show that it is more than likely than not that the probationer violated the terms of his probation. This differs from “beyond a reasonable doubt.”

    • Thank you all for the great comments. The Supreme Court of North Carolina set out the standard of proof at a probation violation hearing in State v. Duncan, 270 N.C. 241 (1967), as follows: “All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.”

      • THE CASE: “A” is on probation and has a curfew of 6am – 6pm. “A” is pulled over in a car that does not belong to him at 2am by the local city police dept. but they lacked reasonable suspicion to pull him over in the first place and is let go, but the city police officer that pulled “A” over reports this to his probation officer. will “A” get violated? and how? thanks.

        • anna: Whether or not to file a violation report on those facts would be a discretionary call for the probation officer. He or she would, I imagine, evaluate the offender’s risk level and supervision history, and also investigate whether the offender had a lawful excuse for being out at that time of night. I don’t think the fact that the information arose from an improper traffic stop would necessarily preclude it from serving as the basis for a violation. In State v. Lombardo, 306 N.C. 594 (1982), the supreme court held that the exclusionary rule is not applicable in probation revocation hearings. See also United States v. Armstrong, 187 F.3d 392 (4th Cir. 1999).

          • thanks for the case law.

      • So if I got 2 pending charges while on probation both midemeanors those court dates are grouped with the probation violation court date? My dates are all gone and I have 2 cases of probation violation on the same day! so just 1 big court case? and I havent been convicted so I guess this 1 date will sort it all out. maybe to save time.

        so like jamie said—— All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.”

        SO THE JUDGE JUST MAKES HIS OWN DECISION MAN THIS SOME BULLLLLSHIT! jk I need to stop getting in trouble. at least I got 1 date. Ill get it continued to build up time to follow probation orders and get stuff done to show I am trying… its petty stuff the judge may just give me a plea… but fuck jail.. Im going to fight both cases cuz they dont got shit!!!!!!!

  4. The biggest problem I see with proceeding on allegations of new pending charges, even when coupled with other allegations of violation, is that the defense is put in the untenable positon of not being able to effectively challenge any evidence put forth by the State. Without discovery and a suitable opportunity to review the charging documents, counsel is left to defend the unknown and seldom has any opportunity to challenge relevant evidentary issues nor any basis for being able to prepare and assert motions to limit testimony or assert defensive arguments. The defendant risks revocation on allegations of new criminal conduct which may never result in conviction or become abandoned by the State via the voluntary dismissal.

  5. i have a question: if a person is on probation because of a deferred prosecution deal where he plead guilty to a felony but had no final judgment and that person has in his possession a firearm at that time can he be charged for being a felon in possession, or will his probation just be revoked?

  6. I generally tell my probation officers that if they want to violate a defendant based on new charges, to allege the underlying conduct as a violation, and not the new charge. Example: defendant is on probation, and picks up a new possession of cocaine charge. The officer should not allege a new pending charge, he should allege that the defendant possessed a controlled substance (on whatever the offense date). That way, I can get him revoked without having to wait on a conviction.

    • So much for innocent until proven guilty? Just find a way around waiting to see the outcome huh? Wow.

      • The person has already been found guilty beyond a reasonable doubt of the conviction for which they are on probation, and the sentence for it (not additional punishment for the new crime) is what stands to be activated upon a finding of violation.

  7. yes, i know, but can you charge the above person with firearm by felon?

    • First: I was not replying to your question; I was commenting on the blog post.

      Second: Questions like yours is why I do not do Deferred Prosecution in the first place.

  8. and if so will the charge or conviction stick based on just on a guilty plea with a sentence of probation imposed because of a deferred pros. deal?

  9. Is a PJC a conviction? I have always thought it was not but recently learned that it should be considered a conviction for probation purposes. What is your opinion?

  10. john g: I don’t think a person could be charged with possession of a firearm by a felon based on an underlying felony for which prosecution had been deferred. Even if the prosecutor requires an admission of guilt as part of the deferral agreement, that admission is not a plea of guilty. See State v. Ross, 173 N.C. App. 569 (2005). (http://www.aoc.state.nc.us/www/public/coa/opinions/2005/041134-1.htm)

    If a person is on probation pursuant to a deferred prosecution, however, he or she will have as a regular condition of probation “possess no firearm . . . without the written permission of the court.” G.S. 15A-1343(b)(5).

  11. what about if a person violates N.C.G.S. 15A-1343(b)(5), and if that person is on deferred prosecution for a felony, then can that person be charged with firearm by felon?

    • john g: No, I think that would just be a violation of the probation that could lead to prosecution for the underlying felony (the one for which prosecution had been deferred).

      • Question. Me and my husband was arguing our windows were up and the neighbor called the police. My husband had left and when the police came to my house they asked me what happened I told them that we was arguing and he punched the wall and I was crying they said because the call came in as a domestic they are going to sign a statement on my behalf, my husband is on probation, can he be violated before he’s found guilty?

  12. Is it a probation violation if someone gets PBJ on Jan 2ND for a DUI in July and then is Convicted Jan 25TH for another DUI occuring in Oct? The charges were pending prior to the granting of PBJ, but the conviction came after the PBJ.

  13. can someone be charged with possession of firearm by felon if they are caught with a firearm while they are on a 90-96 for felony possession of cocaine?

  14. Can a person be charged with violation of probation for not reporting if they have a pending violation? There isn’t a scheduled appointment, & I’ve repeatedly tried to contact the p.o. by phone.

  15. I have a question. If a person is on probation in NC starting in 2007 for selling and possession of cocaine (bond was 125K) and then violates he probation in GA in 2008 with similar charge. The person has been working from 2008 to present with no other charges but has court date in June in NC. What sentence would the person face?

    • The person also had other charges as well…(DWLR, fictitious info to officer). The felony charges were FELONY POSSESSION SCH II CS and MAINTN VEH/DWELL/PLACE CS (F).

  16. iam currently fighting a violation of probation in which i was falsely accused of certain new charges recently the charges where nolle processed and there trying to violate me on thee basis of the fact i came into negative contact with the law but if the new charges where founded on the basis of me being falsley accused would i not of not had contact with the law is the legal basis to find me in violation even though the new charges have been dropped and there is no way of proving that i committed these crimes on purpose because i was neither convicted or plead no contest

  17. Question? What if a person is a convicted felon not once but three time, Larceny over $1000, and 2 charges stemming from a rape of a minor then gets arrested while on probation for 4 felonies and one misdemeanor – then a traffic stop at which time they were given a citation for drug paraphernalia? The last charges 4 &1 and the citation are yet to be prosecuted the dates keep getting pushed back. After all is said and done do any of the prior felonies that this individual is on probation for come into play with these current charges?

  18. person did 60 days for larceny,possession of stolen good.He gets out and a year and a half later finds out he has a warrant for his arrest. He gets a FTA but he in that year has no crimes.Stopped on a routine and he thought he did his time.Bond set at 30000 and court left it secured after arraignment Now what? he never showed up to see his PO cause he didnt know he had to.Will he get some time for not seeing his PO will this being is first violation and that he hasn’t committed any crimes.

  19. My brother was convicted of multiple counts of identity theft, writing bad checks/fraud. He served 18 mos in prison with the rest of the charges probated. He has served 6 years probation. He just had a hearing where he was found in violation of a plea agreement he signed because he failed to pay adequate restitution over those years and his record keeping was not concrete enough. The judge revoked probation and gave him a 90 day dip with the intent of having him serve two 90 day periods then revoke back to prison. He has earned $10 per hour with a wife to support. Can the judge revoke and send back to prison solely on the inability of a person to pay.

  20. Lee Ann: The burden is on the defendant to show a good faith inability to pay. If that burden is met, then the violation is not willful and it should not be a basis for revocation or confinement in response to violation.

  21. Hi, my daughter was arrested for embezzlement for 1700.00 and for falsifiying documents. She was 24 and never been in trouble. She was placed under a prosecution deferment and has 2mo to go and will possibly be charge with stealing money out of her sisters safe in my home. What will happen to my daughter now. thank you

  22. Question. In the case of a probation violation hearing based on a charged crime or the underlying facts, any thoughts on how to respond to the “do you admit or deny the violation?” question. I would think the probationer would either want to deny the violation or plead the 5th. i.e. “I neither admit nor deny the probation violation on the grounds that doing so might incriminate me.” I think they certainly would not want to admit. Could an admission at the probation violation hearing be used against the probationer at the criminal proceeding on the pending charge?

  23. I was faced with a difficult decision. While in an abusive relationship, I made the mistake of driving under the influence in order to get away from the fella. I pled on the case and received probation. I broke up with the abuser before the probation was over. He notified police that I tried to commit arson on a property he supervised that happened to be located next to my home. Even though there was no evidence to support his claim, the officers arrested and charged me. The day of that the case was to get a jury trial date, the prosecutor informed my lawyer and myself that I had two options: plea guilty and serve another two years probation OR plea innocent, fight the charges and probably win, yet still have my probation revoked with the end result a recommendation to serve 11/29. Due to my ex also being a city council member, I feel like I was railroaded. If I had stood up and defended myself against, my three children would have had to live with my parents for a year. Now I have a felony and no hope of ever finding a decent job.

    Small town judicial policies do not coincide with state law in all cases.

  24. If someone has a month of probation left, almost through counseling sessions with only 5 to go and is incarcerated for a new crime, HOWEVER, ALL charges dropped by prosecution…can they charge him with violation of probation because he was in their care for the last month and could not finish his counseling sessions? They are saying he violated probation, however, was unable to go to his sessions to finish counseling. Now, they are trying to hold him for probation violation and charge him. How does this work?

    • Jenn,
      This was a long time ago but im assuming they are blaming him for not finishing had he not been in jail he would have been able to go. Were the charges dropped? what happed?

  25. my husband was charged with two counts of influencing a public servant and has a bond but his parole officer has a parole hold on him ..how long can the parole officer hold him for ?

  26. What if a ppt was on post-release parole in NC and was sent to jail based on pending charges.. But the pending charges were dismissed. How long does it take for the inmate to be released or for the parole to hold to end?

  27. I have a question if you on probation and you going to class and you commit a next crime and someone call the cops and the could not fine you but a arrest warrant is out for you would I be arrest when I go probation class next time ………

  28. MY FAMILY MEMBER WAS SENTENCED TO 20Y SUSPEND ALL BUT 8Y SENT TO PRISION FOR 3YR AND THEN MODIFIED UNDER THE CONDITION OF DRUG TREATMENT HE WAS SENT STRAIGHT TO REHAB FROM DOC AND PUT ON 5YRS PROBATION..HE WAS VIOLATED FOR NOT SUCCESSFULLY COMPLETING REHAB TREATMENT HE WAS HAVING DIFFICULTIES ADJUSTING FROM PRISION..HE WAS ARRESTED FOR VOP AND SENT BACK TO COURT WHERE THEY GAVE HIM THE 12Y WILL THE TIME HE ALREADY SERVED GO TOWARDS THAT SENTENCE…NO NEW CHARGES AT ALL

  29. My brother is currently on probation, he was recently accused of a crime he did not commit. He was given a $50k cash bond that we can not pay, he has a bond hearing tomorrow. Can his probation be revoked for this crime he did not commit? Right now, the prosecutors have 0 proof of the crime they are accusing him of.

  30. My Boyfriend was on probation for 3yrs. A month before his probation was up his PO violated him on the charge that happened a year ago. Can they bypass the new law and convict him on his whole sentence? Because he never did his 90 days under the new law. The judge sentence him to 51 months in prison. Can they do that?

  31. I know of a pending case it is listed under misd. violation of probation. This individual is from Catawba County. He was just placed on probation and was arrested under several felony charges. These were charges related to the drug bust of the top 40 which recently took place. He has now be indicted for these charges I assume that this is sufficient evidence to become a VOP case since an indictment did occur. This individual has blood on his hands and was a known heroin dealer. The charges will not stop him because now he needs a lawyer and any fees associated with this situation which may arise and will arise. He further has had my granddaughter in the vehicle while doing his dealing and she is only nine years old. I hope this law is legit…I hope he is stopped before my baby granddaughter has something happen to her in the mist of all the crime activity and drug/alcohol abuse.

  32. So I have finished all the conditions of my probation and I have paid all remaining restitution as my probation officer informed me to. She told me as soon as I pay off the restitution she would get me off probation, When i informed her everything was paid and done she aid she was going to run a check on me on feb 11, and it would be back in a week, I called her a week later and she informed me nothing had come back yet. On Feb 14th I was charged with a crime, i called her twice and left voice-mails to let her know, now normally she would call me back, she even answers her phone every-time I have called or calls back pretty fast, I am a mhdd (mental health court case) I have two questions, one would she have found out about the new case if she ran the background check on the 11th or not, and why isnt she answering my calls if she knows? im at a loss I have always been open and honest with her and dont intend not to be but I cant get ahold of her! What should I do ??? Oh its cuyahoa county

  33. i was arrested on new charges while on probation but my codefendant took all responcability to the charges that are still pending and i bonded out now my probation officer is trying to arrest me for a vop because of new charges but i have paper worked signed by my co drefendant and public defender but probation officer says has to be from da but we havent even got a court date dcan she do that even if i havent been convicted and the charges will not be on me

  34. if im on probation, and im under investigation for a new crime, but was never arrested. can they violate me?

  35. I was on mail in probation and violated due to not completing a course and a final.payment I now live 1000 miles away a she issued a cash bond/professional. Is there a way to pay for the bond without having to appear in court there?

  36. I served 30 days in prison for violating probation for not paying probation fines and then picked up 3 new charges. I got out of jail, now i have a felony on my record. I was placed on a year supervised probation for larceny over $250. I was ordered to go to treatment residential programs, drug tests, pay fines, get blood taken for dna. I completed the programs, and everything else, I’m a few weeks away from my court date to get off probation, I only owe $200 which will be paid but I’m worried because I left the program in January and never checked in with my probation officer since I left or did and drug tests since. He has my phone number though and hasnt called me. Oh ya, I have 11 months suspended time over my head. Whats gonna happen at court? My caseworkers at the halfway house told me he never called them either..

  37. This is in Massachusetts…

  38. hi my name is crystal and my boyfriends in jail for revoked he’s probation and the judge gave him 30 days in jail and its a month already and I want to know if he could get out because he has no bond no court set and I wanted to know if he could get out because our house is falling in and my my grand mother can’t see nd we don’t fire alarms in this house

  39. My husband is facing probation violation and his time is 5 to 15 months. We already had his 2 driving with license revoked taken care of by getting his license before the court date. His violation is misdemeanor simple assault against his brother. Yet his brother wants it dismissed or at most to go to mediation. My husbands violation is in superior and district court system. Will they wait to see the outcome before they go ahead with the violation and pass judgment or do we have a chance that maybe it will only be a few days in jail if any?

  40. my question to you is in regards of my brother .he was charged in a case back in 2009 and the judge gave him prop 36 ,he paid he fines went to school and completed hes prop 36.now in 2014 he got charged with another cause and the distric attoney brought up hes old cause and are lawyer had him plead guilty to hes old case .how is that possible and why .thank you for your time

  41. Hey my husband was on house of rest he had 3months left oon house of rest so he got a charge of cocaine while on house of rest he telling me that if they violate him he do the rest of 3 months on house of rest in jail he said if they don’t violate him and 21 days he can get bail I want to know is there any true in what he saying

  42. I have a question . My boyfriend was arrested tonight . His on a 5 year probation and a 12 year back up. He was arrested fod riding his dirt bike through town and their charging him with a felony while revoked and on probation for. Their telling me a bond won’t be set till monday if they even give him one. We have a baby girl who is his heart. I’m afraid since this is a violation it will cause him to go back . Scared emotionally overwhelming . Need advice please?

  43. My boyfriend just got put in jail he got a dui in 2012 went to court in 2013 and got year without dl and probation and community service and classes. His first dui and never has been charged with anything before. He got caught dwlr three times driving to work and then got put on a curfew and more community service he has took the classes and did all com. service went to court for other charges and was told by his attorney and probation officer he should pull time for dui and he would file other charges concurrent while he is there and be out in 45 days. He was told 90 days for dui but it should be cut in half when he got to jail but its not now they are saying he has to pull 90 days and we dont know why.

  44. My husband is on parole he missed curfew and he said some verbally inappropriate things to his parole officer because he was getting on his case for being four minutes late he arrested him and is trying to lie and say he was resisting arrest and aggravated assaulted him what can I do?

  45. I have 2and a half months left on probation out of three years done everything right paid restitution but still owe some fines and fees my last visit she said she was going to try and get me off early and get my remaining balance waived to civil judgment or something like that but in doing so she gave me a monetary violation when I go to court what’s the odds of my probation being terminated and the money become a civil judgement

  46. I have a question. my friend was sentenced to 1 year and a half in prison for stealing a car because of their addiction in North Carolina, he was put on probation but violated it by leaving rehab which he had sent. was attending the appointments with his probation officer every week on time but was put in prison for their official once again for its violation to probation. He be sent to the North Carolina again. if the judge decides to pass the time in prison would have to be for a 1 year and a half starting now or the judge could sentence him to finish his sentence to jail? his probation ended in April 2015.

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