For Whom the (ahem) Period of Probation Tolls

If you’ve been reading the paper, you know the Division of Community Corrections (Probation) has been under a microscope lately. Since the killings of UNC undergraduate Eve Carson and Duke graduate student Abhijit Mahato in 2008, both allegedly committed by probationers, Probation has been taking a hard look at its policies and procedures.

One change that has come about is a new interpretation of the provision in 15A-1344(d) that says a “probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation.” Probation has now taken the position that a new charge for any offense other than a Class 3 misdemeanor (probation cannot be revoked solely for conviction of a Class 3 misdemeanor) tolls—that is, stops the clock on—a person’s period of probation immediately when the charge is brought. The period is held in abeyance until the charge is resolved (by way of acquittal, dismissal, or conviction), and then resumes when the charge is no longer pending, with as much time remaining on the period as there was when the case was first tolled. When a probationer is charged with a new crime, you effectively push pause on a clock counting down how much time a person has left on probation, and you don’t “un-pause” it until the charge is resolved.

Probation’s new approach to tolling is based on Court of Appeals decisions in State v. Henderson, 179 N.C. App. 191 (2006) (“Under the statute, a defendant’s probationary period is automatically suspended when new criminal charges are brought.”) and State v. Patterson, __ N.C. App. __, 660 S.E.2d 155 (2008) (same). Prior policy required tolling of the case only when a probationer had a new pending charge when his or her period of probation was set to expire.

The impact of the new policy could be substantial, not only because a lot of probationers are charged with new crimes while they’re on probation, but also because Probation is now (for the first time) equipped with the technology to know when their supervisees are charged with new crimes. A new web-based alert program informs Probation’s computer system (OPUS) when a probationer has a new charge pending in AOC’s computer system (ACIS). When a probation officer gets an alert that a new charge is pending, he or she tolls the case immediately.

The result? A lot of people are going to be on probation a lot longer than they expected.

26 comments on “For Whom the (ahem) Period of Probation Tolls

  1. The result is not just that a lot of people are going to be on probation a lot longer than they expected; it is also that people who are accused of a crime and are utimately found not guilty or whose charges are dismissed will be unfairly required to complete a longer term of probation.

    • Does tolling apply to defer prosecution cases under supervision-how does the probation office have the right to toll cases that are pending disposition?-it that not doing a pentalty of pending on pending dispositions?

      • ANON: There’s no case that tells us for sure, but it seems to me that the rules applicable to regular probation would also apply to deferred-prosecution probation. The court of appeals said something similar in State v. Burns, 171 N.C. App. 759 (2005), in the context of 90-96 probation.

  2. As a probation officer, I can tell you that most of my co-workers, my chiefs and myself are not happy about the new enforcement/interpretation of this policy and are hoping that it will be resolved soon although I can’t tell you what that resolution is. That is for the lawyers to address. I informed an offender yesterday of this and had him sign the necessary paperwork and he was pacing the office and expressed his dismay and frustration. He then stated that he wanted to serve his active time but came to his senses before he left the office and has since let me know that his frustration was not aimed at me but at the system. I pray that someone addresses this issue soon so that the offenders are given the term of probation that meets the ends of justice and is appropriate to the crime.

  3. First, let me say how happy I am to see people reading and commenting. We’d really like this to be interactive and helpful. I’m especially excited to get feedback from a probation officer–thank you.

    I think your concerns are legitimate. The rule is harsh when viewed retrospectively for a probationer who is eventually acquitted or has a new charge dismissed. I imagine in many of those cases DCC would not oppose a request to terminate probation for an offender whose period of probation would have ended had it not been tolled. It’s also not hard to imagine a statutory amendment that would allow credit for time spent on probation during the tolled period if a new charge did not result in a conviction.

  4. Maybe the solution (or at least partially) is that if an offender is charged, that the time stops as is, and the probationer continues with his program and if the new charge is dismissed or they are found not guilty, then the time stop is erased and they get credit for that time as is no charge was brought. Therefore, the tolling only effects those found or pleading guilty.

  5. An unpublished opinion from the Court of Appeals this week deals with tolling probation. The opinion suggests tolling is automatic and requires no notice to the defendant. State v. Battle, Nevertheless, as of January 1, 2009, DCC policy is to issue a DCC-51, Notice of Tolled Status, to probationers who have a new charge pending.

  6. Under the tolling policy, is a person still subject to supervision along with the other conditions of his probation (e.g., drug testing, comm. service, curfew checks) while his new charge is pending. Do they still have to pay supervision fees.

    It seems to me that the State can’t have things both ways, that is, pushing back the probation termination date and at the same time continuing to supervise the probationer.

    • yes they must still pay supervision fees and keep all appt. and drug testing.

  7. Totally agree with you Rich,, how does the state have it both ways? It seems to me if the probation is tolled then everything else (fees, supervisory visits, drug test,) should be put on hold also. I have a family member who is on probation, was charged with DUI while on probation, but has met all other the terms of his probation, is up to date on his monthly fees, has had neg. drug screens, attending AA meetings, worked 2 jobs while finishing his college degree. So how is this fair?

  8. My son is schedule to be released from N.C soon and is from Alabama which is where All his family is due to the court sending in paperwork wrong on another charge that is to run concurrent i just got his paper work in the system to show that he does not have to serve time in Alabama only 6 days before his release now my problem is he cant come home when he is released because i heard it will take about a month to transfer his probation to Alabama i would love for his to come home and see his siblings that he has only seen 2 times in almost 5 years can he come for a short visit? Does anyone know how i might speed the process up?

  9. Michelle Ward: It is correct that it can take some time to formally transfer probation or post-release supervision to another state under the Interstate Compact for Adult Offender Supervision. (I’m assuming your son will be on post-release supervision after serving time in prison, or on probation for another offense committed in North Carolina.) A judge (or the Post-Release Supervision and Parole Commission, as the case may be) or a probation officer can give a supervisee permission to leave North Carolina on a temporary basis, but they may be hesitant to do that in some circumstances.

  10. I’m on probation and this is B.S. i guess if you murder somebody you should do have the time just cause they thought you did it. Guilty is guilty and innocent is innocent, therefore should be no punishment when case is dismissed!

  11. If probation supervision time runs out before the probationer is found guilty in a new charge, any judge with a grain of sense will dismiss the violation of a new conviction and terminate supervision in the probation case. If the probationer receives a new probation case from the new offense, the judge will continue him on supervised probation in the case he was violated in. If the probationer receives active time over 180 days in the new case and goes to prison, the judge will run all sentences concurrent so what is the use of reporting him back in the first place?

  12. I think the pause is unneeded.It’s not like the officer is going to reales the person with a pending charge any how.It is just another gain of money to support the system. It is not only unfair the person must lose time but they are still required to pay fees while on tole status.

  13. It seems all of these responses are from when the probationer really is not guilty of new crimes. However, when a person is on probation that is there get out of jail free card. If they continue to get arrested they should not suspend their probation but put them in jail!!! I am watching a person (part of my family) who is on probation commit crime after crime. Right now they have over 20 new charges and they are still running around. When is enough, enough!!!! I believe in a defendant’s rights but the laws are not getting and keeping bad people of the streets. They are showing them the road to worse crimes. I am watching it right now. I hope my family member does not hurt someone. By the way, they have small children and the legal system and the Social Services Protection system has failed them. So, maybe this tolling will help them become free of this parent who is out of control sooner. But, I dont believe it will.

  14. Can you tell me if it is hard to get probation transferred for a 54 year old terminally ill patient that has never been in trouble before and is very low risk on a prescription charge of my own prescription. I got the same from my two doctors not knowing it was wrong. I got deferred with 3 years probation. I want to go be with my family to die in North Carolina. Texas says ok. I need to leave on April 20th

  15. What about this? C pleads in County A to a probationary sentence. Without getting out of jail he is trasferred to County B where he admits crimes occurring before being palced on probation in A and recevies active time. Eight months later he is relased from the County B charges. He never reports to begin probation in County A. Doesn’t seem like the tolling applies.

    • Dan Read: If I understand the facts correctly, I think I agree that tolling wouldn’t apply in the situation you describe. Because the County B crime occurred before he was placed on probation in County A, it is not (to use the language of G.S. 15A-1344(g)) a criminal charge which, upon conviction, could result in revocation proceedings against the probationer.

  16. After being on probation now for close to five years my probation was nearing an end. I have paid all fees, completed my community service, and live a drug free life! However, I was in route to the hospital to admit my sick father several months ago. At the time, I was pulled over by a NC State Trooper that had absolutely no compassion for the situation. The court date was set one month and three days from the alleged speeding violation. The ticket was dismissed on the court date. To my astonishment, I received an additional two and a half months to my probation sentence-For a SPEEDING TICKET! Now, if that is not being “guilty until proven innocent,” I do not know what is… The system, although having a shortage of officers, does everything within it’s power to keep you “locked in the system forever!” I am still in shock about this… Does Tolling really apply to a traffic violation, as well? Jamie, thanks for letting me vent about this matter and I appreciate, in advance, your response.

  17. Wayne P.: There does not appear to be an exception to the tolling law for traffic offenses (except those that happen to be Class 3 misdemeanors). Had the offense for which you were on probation occurred on or after Dec. 1, 2009, the time you spent in tolled status would have been credited back to your probation period when the ticket was dismissed under new G.S. 15A-1344(g). That provision does not, under the enacting language of the law, relate back to offenders on probation for crimes occurring before that date. Under the facts you provided, though, you may have a persuasive argument that the court should consider terminating your probation under G.S. 15A-1342(b).

  18. Thanks for your response, Jamie. In my previous post I gave you some incorrect information. I thought my Attorney told me the infraction had been dismissed. When, in fact it was only reduced to improper equipment. My Attorney states this type of charge is the next thing to a dismissal. I just wanted to be clear on this and not give you any false information. However, I do have a question concerning your above posted response. Would an example of a class three misdemeanor be, for instance, traveling 21 miles over the speed limit and if so, why would a greater offense [Class III misdemeanor] not be tolled?

  19. I have heard that the state has taken back the POs’ state-provided cell phones and replaced them with walkie-talkies. The POs can now talk to each other on these walkie-talkies but how will they communicate with their clients? Since the POs are required to spend a lot of time in the field, how will the clients notify the POs of emergencies and other time-sensitive information and incidents? In a system that is so dependent on communications, how does taking back the POs’ cell phones make sense? If people are violated because of communications ‘glitches’ that are the result of this decision, won’t that cost the state more than the cell phones?

  20. Jamie, Thanks for your enlightenment on this tolling business. We are facing this dilemma now, and have yet to be given a square answer concerning what to expect. My husband pleaded guilty to criminal charges in 2007 and received a sentence of 5 years’ probation that should expire in September 2012. In May 2010, he was arrested and charged with willfully and feloniously going within 300 feet of a children’s park. This current case has yet to be heard by District Court and his probation has been tolled. Once this May 2010 case is dismissed, and/or he is found not guilty will his original probation time of 5 years be restored in accordance with NCGS 15A-1344(g)? Should that be automatic or must that restoration be ordered by the Court? I really appreciate your feedback.

  21. […] main probation reform bill, S.L. 2009-372, that says probationers for whom a period of probation is tolled based on a new charge “shall remain subject to the conditions of probation, including […]

  22. […] in response to the way the court of appeals interpreted the law in a couple of cases (as discussed here). It changed again in 2009 when the legislature moved the relevant statutory provision from G.S. […]