New Criminal Charges as a Violation of Probation

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.