Preliminary Hearings on Probation Violations

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Under G.S. 15A-1345(c), a preliminary hearing on a probation violation must be held within seven working days of a probationer’s arrest to determine whether there is probable cause to believe that the probationer violated a condition of probation, unless the probationer waives the preliminary hearing or a final hearing is held first. I’m told the practice when it comes to preliminary hearings varies considerably around the state, and that in some places they aren’t done at all. Here’s a quick – and far from exhaustive – Q & A on preliminary hearings.

Does a preliminary hearing need to be held in every case? No, a preliminary hearing only needs to be held when the probationer is detained solely for a violation of probation. A preliminary hearing is not required when the probationer is released on a bond pending the final violation hearing, and is likewise unnecessary when the defendant is also being held on a new charge for which he or she is unable to obtain pretrial release. State v. O’Connor, 31 N.C. App. 518 (1976).

Which court should conduct the preliminary hearing? Under G.S. 15A-1345(d), the preliminary hearing should be conducted by “a judge sitting in the county where the probationer was arrested or where the alleged violation occurred.” That statute does not include the limiting language of G.S. 15A-1344(a), which extends jurisdiction to hold a final violation hearing only to judges “entitled to sit in the court which imposed probation.”  In my opinion, the lack of limiting language in G.S. 15A-1345(d) means any judge in the proper county-district or superior-may conduct the preliminary hearing.

Is the probationer entitled to counsel at the preliminary hearing? Under G.S. 15A-1345(e) and G.S. 7A-451(a)(4), probationers are clearly entitled to counsel (and to have counsel appointed if indigent) at their final violation hearing. It is less clear, however, that this statutory right to counsel applies to the 15A-1345(d) preliminary hearing. Even if the statutory right to counsel does not apply, many defendants may have a right to counsel at the preliminary hearing as a matter of constitutional due process. Under Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), a probationer has a due process right to counsel at both preliminary and final revocation hearings if: (1) he or she claims not to have committed the alleged violation; (2) there are “substantial reasons which justified or mitigated the violation . . . that [are] complex or otherwise difficult to develop or present”; or (3) the probationer is incapable of speaking effectively for himself or herself. Thus, any defendant who disputes the alleged probation violations (and who would thus be unlikely to waive the preliminary hearing) appears to be entitled to counsel under Gagnon. I realize it may be hard enough to hold a preliminary hearing within seven days, much less appoint counsel beforehand – but that appears to me to be what the statute and the Constitution require.

What happens if the preliminary hearing isn’t held within seven working days? The probationer should be released to continue on probation pending a final violation hearing. That doesn’t mean the violation is “dismissed”; it just means the probationer cannot be detained any longer without a hearing. The failure to hold a preliminary hearing does not deprive the court of jurisdiction to hear a final violation hearing. State v. Seay, 59 N.C. App. 667 (1982).

I’m sure there are other questions out there. Please feel free to post them or to share your thoughts.

One comment on “Preliminary Hearings on Probation Violations

  1. In Texas a probation violation is treated as any other offense. If the defendant bonds out he is assigned a court date and the case proceeds like any other. If he is unable to bond out, an attorney will be appointed to handle his case.

    There are no preliminary hearings on a motion to revoke probation — just a multitude of settings until the case is worked out.

    It would seem that denying a defendant an attorney at the preliminary hearing would be violating his constitutional right to counsel once adversary proceedings have begun — particularly since the possibility of jail/prison time is very great.

    Unless, of course, the preliminary hearing in NC is the equivalent of a probable cause hearing in Texas — the judge asks the prosecutor what the PC is, the prosecutor reads from the officer’s narrative and the judge finds probable cause.

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