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. 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.” ┬áIn 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.

2 comments 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.

  2. In NC or in our district no one family or otherwise are allowed at these parole violation hearings. They are heard by a person from the Parole Commission, at least that is what has happened with my grandson. This does not appear to be fair to parolee nor their family. No one is allowed in and not allowed to speak for the parolee. Is there any particular reason for this. My grandson has slight mental problems and does not understand a lot of things said to him however he will not ask questions. He is also a drug addict. Drug of choice Marijuana and some cocaine. because he is 22 now his family is not allowed to talk with his parole officer about anything involving his case or their conversations even with his consent to speak with family members, ie: mother and grandmother. He has had only a 9th grade education. Does all of this sound correct? His parole officer is aware of his problems, however it seems she is not interested.
    He was picked up at the age of 18 and was not in court until the age of 19, charged with Exploitation of a Minor, he was 17 she was 13 and as you know girls these days DO NOT LOOK THEIR TRUE AGE. He put a picture of the girl on social media, which was a picture that he had been sent not a picture of him and her but of her and someone else doing a sexual act. As soon as it was seen by his brother which was a bout 10 minutes it was off. I do not condone anything he did as it was very wrong, however he did not get the attorney representation that we paid dearly for nor were all of the elements of the crime met. Because the DA did not have a case a plea was entered on his behalf by his attorneys. He went to prison on a active sentence of 15 to 20 months. He stayed 20 months and came out with a 5 year probation. At the present time he is in county jail waiting for his parole hearing which 7 days will be on Monday. This is his 3rd parole violation. He has ADD, ODD and just diagnosed with PTSD. Prison has changed him to the point that he has trust issues terribly, will not talk to anyone concerning his problems, has no work experience and only the 9th grade education and is a felon and does not have enough self worth to try to find work, he has been told no so many times NO he has completely shut down and will not even look anymore. Even though it stated on the internet that anyone under the age of 21 with no HS diploma would go to school and it was mandatory while in prison, he was not mandated to go, he was allowed to sit in a cell for 23 hours per day and sleep or read. No trade school offered no anything. Prison has only made him worse and they continue to send him there.
    This time he was sent for Intermediate Supervision however he walked away because he said he was accused of something he did not do and they were going to kick him out anyway, so he abscondered. He came straight home, his parole officer was called and she advised to bring him in at 9AM the next day. He was not out of the Intermediate Supervision for 24 hours, she put him in jail to await a parole hearing.
    I am completely exhausted thinking and looking for help with him. Do you have any ideas on this case? I have been following your blogs in hopes that you would discuss something like this and found this one which is what we are looking at now. Help NEEDED!

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