Probation Modifications for Good Cause

There need not be a violation for the court to modify probation.

Occasionally I hear about a situation that goes something like this. Things are going relatively well in a probation case, but the probation needs to be modified in some way. Even when everyone is on board with the modification (or perhaps even termination), I am sometimes asked whether the parties must come up with a violation to get the case before the court. The underlying concern is that the court will not have jurisdiction to act on the case without some allegation of violation.

The General Statutes do not require there to be a violation before the court is empowered to act. Under G.S. 15A-1344(d), the court has power to modify the conditions of probation or extend the probation “at any time prior to the expiration or termination of the probation . . . after notice and hearing and for good cause shown.” Good cause can be something short of a violation. In fact, G.S. 15A-1344(d) goes on to list the court’s options “[i]f a probationer violates a condition of probation.” According to that list, the court can do more in response to a violation than it can for mere good cause—it can, for example, impose special probation and, in response to certain violations, revoke probation—but that does not mean a violation is required before the court may extend or modify.

Form AOC-CR-609, the Order on Violation of Probation or on Motion to Modify, expressly accounts for the possibility that the matter may be before the court for modification without allegation of violation. That is option two in the block at the top of the form:

Most of the time it seems that good cause modifications are done by consent, and thus without the need for notice and hearing. If the modification order is prepared properly, with the block at the very end of the form indicating that the probationer received the form before its entry and agreed to the modification in question, that is probably all that is required to enter a modification for good cause.

I say “probably” because there is some argument under the line of reasoning discussed here that there is no statutory provision expressly allowing a defendant to waive his or her right to a hearing on a modification, and that modifications may therefore be done only at a courtroom hearing after giving prior written notice to the probationer. Community Corrections thought enough of that argument to end the practice of seeking extensions outside of open court. The department has not extended that policy to other modifications.

In any event, a probationer’s consent is not required before the court may modify probation for good cause. Without consent, though, there surely must be notice and a hearing before the court may act. It’s not exactly clear what that notice must entail, and there is no boilerplate form for providing it. A probation officer could presumably use something similar to the DCC-170, the form used to give notice of a hearing on an extension for good cause.

As for the hearing, it’s not clear what that looks like either. It’s not a violation hearing under G.S. 15A-1345, because there is no violation alleged. I think it’s mostly an opportunity for the probationer to learn about whatever new conditions the court imposes, although the statute does expressly say that the hearing “may be held in the absence of a defendant who fails to appear for the hearing after a reasonable effort to notify the defendant.” G.S. 15A-1344(d). As for what constitutes “good cause,” what little case law we have suggests that a trial judge “is given considerable discretion in determining whether good cause exists for modifying the terms of probation.” State v. Coltrane, 58 N.C. App. 201 (1982), rev’d on other grounds, 307 N.C. 511 (1983).

I can think of at least two reasons why it is important to know that a judge has jurisdiction to act on a probation case without allegation of violation. First, any violation ginned up solely to get the case before the court could, if found by the court, still serve as an aggravating factor in a future felony sentencing under G.S. 15A-1340.16(d)(12a). Second, there’s always the possibility that the judge might not respond to a violation alleged just to get the case before the court in the way the parties had in mind.

Finally, I’ll note that there is one situation where the State must file a violation report to give the court jurisdiction to act, and that is when probation is about to expire. The grant of authority in G.S. 15A-1344(f) for the court to act after expiration (which includes the authority to modify) applies only when a violation report has been filed before expiration. There is no analogous provision for good cause modification after expiration based on a notice tendered before the case expired. So if you want to modify probation for mere good cause, get it done before the case ends.