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.