Alleging a Probation Violation

A probation violation need not be alleged with the technical precision of an indictment, but there are still some rules about the right way to prepare a probation violation report.

By statute and as a matter of constitutional due process, a person must receive notice of an alleged violation of probation before a court may act on it. The statutes are fairly unspecific, saying only that any request to arrest a probationer for a violation must be accompanied by a “written statement signed by the probation officer that the probationer has violated specified conditions of his probation,” G.S. 15A-1345(a), and that “[t]he State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged,” G.S. 15A-1345(e). The constitutional underpinning of the statute is also somewhat vague. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (“[T]he ‘minimum requirements of due process’ include . . . ‘written notice of the claimed violations.’”).

So we can see that there must be notice. And that it must be written. And that it should identify the conditions allegedly violated (although we’ll see in a moment even that turns out to be flexible). What’s not crystal clear—by statute or as a matter of due process—is what information must be included within those written violations. Is the bare statement that the probationer has violated a certain condition enough? Or must the violation report give some indication as to the factual basis of the allegation?

Our appellate courts have analogized to criminal charging instruments when talking about the purpose of probation violation reports. See, e.g., State v. Hubbard, 198 N.C. App. 154 (2009) (“The purpose of the notice mandated by [G.S. 15A-1345] is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act.”). But they have been much less demanding as to the requisite contents of a violation report than they are about indictments.

Looking at the cases, it appears the either (1) a clear identification of the particular condition violated, or (2) a fairly clear statement of the facts describing a violation of a particular condition will do the trick.

An example of the former pathway is State v. Lee, 232 N.C. App. 256 (2014). In Lee, the violation report gave sufficient notice of the alleged violation—a “commit no criminal offense” violation—because it clearly captioned the alleged violation under the heading of “Commit no criminal offense in any jurisdiction.” The court of appeals emphasized that “the relevant piece of information is the violation alleged, not the manner of proving the violation.” Id. at 259. And so the notice to the defendant was sufficient, even though the facts alleged under the captioned violation were not a sufficient basis for revocation, in that they referred only to the defendant’s pending criminal charges.

An example of the latter pathway is State v. Moore, __ N.C. App. __, 795 S.E.2d 598 (2016). In Moore, a violation alleging a series of pending charges was, for some reason, filed without any caption at all.

The defendant argued on appeal that he did not receive adequate notice of the violation because the State failed to identify which condition of probation had been violated. The court of appeals disagreed, saying that it had never held that “certain ‘magic’ words” were required to give a probationer proper notice of a violation. The court concluded that “the only condition of Defendant’s probation to which [a list of pending charges] could reasonably be referring to is the condition that he not commit a new criminal offense.” Id. at 600. The court noted that the better practice would be to expressly state the condition violated, but here, because there was no ambiguity, the notice was deemed sufficient and the revocation was affirmed.

I can imagine that looking at Lee and Moore together might make defendant-probationers feel a little bit like it’s heads the State wins, tails the defendant loses. When the violation caption is clear, the court will excuse facts that don’t themselves measure up to a violation. And when the facts point toward a specific type of violation, the lack of a proper caption isn’t fatal. But I suppose the touchstone in both cases is notice—and in the relaxed procedural context of a probation violation hearing, either type of notice is apparently notice enough of what the hearing will ultimately be about.

Even if cases like Lee and Morrow establish a fairly forgiving approach to violations, it’s important to remember two of the more hard and fast rules that apply in this context.

First, the particular violations alleged control the scope of the violation hearing. The court may not act on violations other than those in alleged in the violation report. State v. Cunningham, 63 N.C. App. 470 (1983) (concluding it was improper to revoke probation based on property damage caused by the defendant when the violation report alleged only that he played loud music).

Second, after Justice Reinvestment, probation may be revoked only when a defendant has received notice of a revocation-eligible violation. Absent a waiver of notice, the court may not treat behavior alleged and captioned as a technical violation as a new criminal offense or absconding, even if that behavior might have qualified as one of those types of violations. See, e.g., State v. Kornegay, 228 N.C. App. 320 (2013) (holding that the trial court erred by revoking the defendant’s probation based on his drug and firearm possession, when those behaviors were alleged as technical violations instead of new criminal offenses) (discussed here).