Dismissing a Probation Violation

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Who can dismiss a probation violation?

A probation violation report is not a new criminal charge. It is, rather, a “statement of the violations alleged” under G.S. 15A-1345, necessary to give a defendant the notice that is constitutionally and statutorily required before the court may respond to a violation. (Violations of unsupervised probation are governed by the special notice rules set out in G.S. 15A-1344(b1).)

And yet, probation violation reports are often “dismissed” like criminal charges. Sometimes there are technical problems with an allegation, like when it wasn’t filed before the case expired, or when the probationer is alleged to have violated a condition to which he or she is not actually subject (like an absconding violation by a probationer who falls within the absconding donut hole). Sometimes, an alleged violation is rolled into a plea negotiation where the State agrees not to go forward on a violation in exchange for a defendant’s guilty plea to a new criminal offense. And sometimes, a person previously in violation has since come into compliance—perhaps by paying off some monetary arrearage, or by completing community service hours on which he or she had fallen behind.

Nobody seems to have much trouble with dismissals at an actual violation hearing. Many appellate cases note “motions to dismiss” violations without disapproval. See, e.g., State v. Black, 197 N.C. App. 373, 374 (2009) (“Defendant filed a motion to dismiss the probation violation charge and argued the court was without jurisdiction . . . .”). Violations not found by the court are styled as “dismissals” on the modification and revocation forms that result from the hearing, and coded as such in the computer.

But what if a violation is handled without a hearing? Is it necessary to have a judge dismiss it? Should a judge “dismiss” a violation that never actually came before him or her for hearing? May a prosecutor “dismiss” a violation before hearing in the same way he or she would dismiss a criminal charge before trial?

The background issue is that probation violation reports do not fit neatly into the types of criminal “pleadings” set out in G.S. 15A-921, and the voluntary dismissal statute (G.S. 15A-931) applies only to the “charges” set out in those pleadings. There is no statute that speaks directly to the dismissal of a violation report. That vacuum gets filled with a variety of local practices. Adding to the confusion is the fact that some disposition codes available in relation to criminal charges are not available in probation matters. For example, the “VD” code for a voluntary dismissal is not available for probation violations, but dismissal with leave (“VL”) is.

In some districts, it is thought that only a judge may dismiss a probation violation. In those places, they will close out an agreed-upon resolution of a violation by bringing it to a judge for his or her signature on the dismissal. To some degree that practice may flow from the unavailability of the VD code. Or, it may result from some sense that the progress of a probation case is, ultimately, a matter between the court and the Division of Adult Correction. There is a plausible statutory basis for that view: G.S. 15-205 says that cases are referred to probation officers by the judge and that officers report back on them in writing to the court, without any mention of the district attorney.

Whatever the origin, I could understand a judge being hesitant to dismiss a violation he or she has heard nothing about. In my view a prosecutor could—and arguably should—be the one who dismisses a violation if the real basis for the dismissal is the prosecutor’s decision or agreement not to bring it before the court for hearing. The burden of proving a violation is on the State, see, e.g., State v. Tennant, 141 N.C. App. 524 (2000), and there’s no clear basis for imputing to the court a prosecutor’s decision not to go forward on that burden. In other words, if there isn’t going to be a hearing, I think the prosecutor can dismiss the allegation himself or herself, without any need for a judge to make it official. In the absence of a VD code, my understanding is that clerks will record that sort of thing as a PO (Probation Other), and then note the State’s dismissal in a free text fields.

I don’t see any appellate cases on point. The closest thing I found was State v. Norwood, 193 N.C. App. 456 (2008) (unpublished), in which the court of appeals noted without disapproval that the State had dismissed some of a defendant’s alleged violations before the violation hearing but proceeded on others. In the absence of much statutory or appellate guidance, I would be very interested to learn more about how dismissed violations are handled in your district.

13 comments on “Dismissing a Probation Violation

  1. […] this process, a judge or prosecutor has the ability to dismiss probation violation charges, and your attorney can help you get those charges dismissed – just […]

  2. Probation Officer violated for a new criminal offense before I was convicted. Once convicted, he is Violating me AGAIN…any help here ????

    • A mta employee on probation get in trouble ” trasspasing charge”then the case was DISMISSED and sealed,how long it takes for that employee to get reinstated in his job position?

  3. In pa when you are put on probation you have to sign a form adhering to the rules and regulations. If you do not sign the paper’s do you have to abide to the rules of probation or are you obligated legally to do so?

  4. With the Early Releasing of Several people in Prison, Is Probation Violation and Obsconing a part of the Early Release. 2 1/2 Years currently served. (Non Violent, Non Felony}

    • A mta employee get a charge of criminal trasspasing then the charge got DISMISSED but the employee was SUSPENDED until he/she get the proof of the case was DISMISSED,how long it takes to get that employee back to work?

  5. So can I get a no drivers license ticket violation dismiss??

  6. I have a federal probation technical violation but with the wrong dates and wrong offense

  7. I got a DWI in NC, but live in MI and the court knew I was an out of state defendant. Nevertheless, the probation officer filed the Violation papers and sent a copy to an old local address that I no longer lived at. Considering the language of 15A-1344(f) can I get the violation dismissed since probation expired in 2017? The rationel in State v. Burns, 615 SE 2d 347 (2005) places a burden on the State to make “reasonable efforts” to locate and notify me prior to the hearing. They didn’t. They just filed it in the court and put a copy in the mail, to an old address.

  8. I was in court today on a probation violation and the judge checked the Dismissed box accidentally on the Findings of Fact and Order form . Later on the form it reads, “Based on the above finding of fact it is hereby ordered:” then the sentence he intended to impose is written out. It has been filed with the court. My question: is the dismissal final? Can the judge reverse the dismissal? This is obviously an error, but it’s also an order that is signed and filed.

  9. I’m on probation for 4th degree assault minor injury. Recently my wife filed an epo against me when she didnt want to but she had a higher risk of not getting our kids back is what the social services and her attorney was saying. We had court date set and I got mislead thought it got dismissed and we both didnt appear in court. I found out later that day after calling clerk office that they postpone the epo and set another hearing date and that I got a Domestic violence bench warrant out on me. I’m turning myself in the day before court hearing of the epo. What are my chances of not going to jail? How can I avoid going to jail because of mislead? I cant afford attorney and going on alone on this epo court date… help please

  10. My fiance was on probation in Wisconsin but went to his moms funeral in Illinois. He had told his probation officer and got a travel permit. While there he committed a crime and was put in prison in Illinois. That’s been 15yrs ago and has since suffered kidney failure and is in bad health. He is subject for release soon. How can we get his 5yrs left in Wisconsin released?

  11. I have a question about Pennsylvania probation violation. I had completed my requirements for completing probation, but due to Covid19 I was not able to meet with my officer to finalize things. About a month after the completion date I was arrested. I would like to know if I should get a lawyer, and if I can escape having the violation.