Probation Violation Hearings after Expiration: The Importance of a File Stamp

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In general, a court only has jurisdiction to act on a probation case until the period of probation expires. There is a limited exception to that rule in G.S. 15A-1344(f). Under that law, the court may act on the case after it expires if the State filed a violation report with the clerk before expiration. The law is essential when a hearing cannot be held before a supervision period ends because, for example, the alleged violation happened near the end of the supervision period or the probationer absconded.

I refer to this grant of additional jurisdiction as “holding the case open” for hearing. Some people say the filing of the violation report “tolls” the period of probation, but that can be misleading. Tolling has a special meaning in the probation context, referring to the now-repealed provision (first codified in G.S. 15A-1344(d) and later in G.S. 15A-1344(g)) that kept a person on probation during the pendency of a new criminal charge. Unlike tolling, the filing of a violation report does not actually keep a person on probation, it just preserves the court’s authority to respond to a violation alleged during the term of supervision.

Timelines become important when it comes to holding a case open for hearing. The probation officer must be careful to file a violation report before the case expires to satisfy G.S. 15A-1344(f). The standard way to establish that the report was timely filed is to show that the report was file stamped by the clerk before expiration. Under a series of cases decided over the past decade or so, the black-letter rule is clear: in the absence of a file-stamped motion or any other evidence of the motion’s timely filling, the trial court is without subject matter jurisdiction to act after the case expires. State v. Moore, 148 N.C. App. 568, 570 (2002).

A recent case from the court of appeals serves as a good reminder of the file stamp issue. In State v. High, the defendant was sentenced in 2008 to two 6–8 month felony sentences, suspended and set to run consecutively in the event of revocation. His original 24-month term of probation was set to expire on July 20, 2010. Several months before that date his probation officer prepared violation reports alleging multiple violations of probation. The reports were signed and dated March 1, 2010 by both the probation officer and the deputy clerk of superior court, and the defendant acknowledged receipt of them by his signature on March 18, 2010. Neither report bore a time stamp indicating a date of filing. [Cue ominous music.]

The hearing on the violation did not take place until September 20, 2010—two months after the original expiration date. At the eventual hearing, the court extended the probation period by 24 months. After additional violations in 2011 and 2012, the court revoked the defendant’s probation in August 2012.

On appeal, the defendant argued that the court erred by revoking probation in 2012 because, with no file stamps on the 2010 violation reports, there was no subject matter jurisdiction for the September 2010 order extending probation. The State replied that the holding of State v. Moore allows for jurisdiction to be preserved under G.S. 15A-1344(f) by a “file-stamped motion or any other evidence of the motion’s timely filing” (emphasis added), and the dated signature of the clerk of superior court should be considered as “any other evidence” in this case.

The court of appeals agreed with the defendant, concluding that the clerk’s signature was not sufficient to prove beyond a reasonable doubt that the violation reports were timely filed. With no jurisdiction to extend in 2010, everything that followed was improper, leading the court of appeals to vacate the defendant’s activated felony sentences.

The High case confirms something we already knew: file stamps are important. And if the clerk’s signature isn’t sufficient “other evidence” of filing, I’m not sure what is.  So, probation officers and prosecutors: get those violation reports stamped! Defense lawyers: check to see if those reports are stamped, and argue a lack of jurisdiction if they aren’t! Everyone: make sure the file stamp machine is working properly! See State v. Askew, __ N.C. App. __, 727 S.E.2d 905, 907 n.1 (“The file stamp states that the violation report was filed on 31 June 2011, which is not a day . . . .”).

6 comments on “Probation Violation Hearings after Expiration: The Importance of a File Stamp

  1. How can you find out if the violation report is time stamped? My sentence expired July 11th 2016, and the postage date is August 19th 2016. I was instructed to report in 2 days for an administrative hearing.

  2. I’m trying to find out if it’s legal to sign a violation of parole warrant 9 days after my son’s mandatory parole expired please help a concerned and worried mother and pregnant fiancé here Maryland

  3. A precept to serve was filed on October 17th 2012. And probation expires on the 18th of October 2012.But the court clerk didn’t file the precept to serve. Until the 18th of October the day that probation expired at 10:41am that is what the blue stamps on it read. Does the court still have jurisdiction?

  4. So where do I go to find out if the warrant was stamped. We never got an actual copy of the arrest warrant or anything. Does the Clerk of Court keep these on file?

  5. What if I asked the Courts for a copy of the Motion to revoke probation to see if it was signed and stamped before the expired probation sentence and the courts tell me that they cannot find the motion at all? I did this and was told that there wasn’t record of the motion, but they had a copy of the arrest warrant. I did get a copy of the arrest warrant, but it was dated 3 months after the the warrant and motion was supposedly done.

  6. My Probation expires May 15,2017,My Probation officer filed a violation for probation May6,2016,because I missed 2 substance abuse meetings,and I missed 3 UA test.I was on bed rest from my Doctor,but she ignored my medical records,and still violated me.I have been denied my right to have a hearing on the Alligations,but since May6,2017 my P.O.has been adding new violations.On Feb1,2017 I was arrested by the U.S.Marshals,I was in custody for 3weeks.I was released on Feb20,2017 with the agreement that I would report to a residential program.As of Feb20,2017 I had 2months credit for time served.I reported to the program against my will,I requested to have my hearing first,but I was denied.I was in the program for 2weeks,I shared a room with 3 other girls,the staff found an unopened can of beer in the bathroom,which all 4 of us shared.My roommate and I was the only two discharged on 03/10/17.My P.O.said she was putting a warrant out for my arrest because I got discharged from the program.My hearing was previously set for 04/12/17.I checked the Calendar,my name was not there.I contacted my Attorney to find out what was going on,she told me the judge vacated my court date.I told her I was going to appear anyway,she told me not to appear because the judge signed an order removing me from her Calendar!She said to me,if you appear in court you will be arrested!I asked her why would the judge do this?she said because you have a warrant.I asked her why do I have a warrant?she said she doesn’t know,she said my P.O. hasn’t filed a form 12 yet.My Attorney has been very rude and intentionally refusing to help me with anything!She constantly threatens me with jail!This is a night mare!And I have not been able to get any help.So my question is,is there a statue of limitations on filing a probation violation within a reasonable time?Because this violation will be filed a year ago as of 05/06/17,and still has not been resolved.Also I have asked my P.O. for a copy of the new violations that she is alleging that I’ve committed,I have not received them,and she refuses to respond to my phone calls or my text messages.In October 2016 I asked her supervisor to please change my probation officer due to several problems I was experiencing with her.She became very upset with me,for reporting these issues,and since October,2016 she has become more hostile and extremely vindictive!I just want to go on with my life!Originally I was sentenced to two years in custody and 3 year’s of supervised release.On 03/24/15 I was surprised by U.S. Marshals at my door with guns everywhere!I have never been given the respect to be summoned to court,I don’t understand why or what I’ve done to be treated so harshly.So on May15,2015 after being violated for failure to report to my P.O.,which was untrue,failure to pay my restitution and a dirty drug test from a year prior to the violation.I was in custody for 2months,they added 9months to my already 3year probation term,which I was totally unaware of,and then I was ordered to go to ahalf way house and sentenced to another 3months!This was very harsh and extream to say the least.However I have completed all of this,I was forced to quit my job,forced to drop out of college.Because of these actions I am now being Evicted,I have not been in any trouble in the last 4 year’s!And THESE people are refusing to discharge me!I am truly exhausted,and this is only a small portion of the torment I’ve had to endure!The fear that now haunts my children!Please can someone help me?Please!I am very afraid for mine’s and my families safety.

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