Probation Violations Arising During a Tolled Period

I recently presented at the North Carolina Probation and Parole Association’s annual conference. I received a lot of really good questions, but the subject that raised the most questions (by far) was tolling probation under G.S. 15A-1344(g). I wrote about it in this post if you care to review the basics. The general concept is that a probationer’s term of probation ceases to run when he or she has a new criminal charge pending that could result in revocation proceedings, and doesn’t start running again until the new charge is resolved. Any pending criminal charge (including charges for traffic offenses) tolls the probation period, except a charge for a Class 3 misdemeanor which, under G.S. 15A-1344(d), may not result in revocation.

The law has a changed a little bit since I last wrote about it, adding a provision intended to mitigate the effect of tolling if a new criminal charge is resolved favorably for the probationer. Under the new law “[i]f the probationer is acquitted or if the new charge is dismissed, the time spent on probation during the tolled period shall be credited against the period of probation.” The law was added by S.L. 2009-372 and made effective for offenses committed on or after December 1, 2009. I interpret “offenses” in that context to mean the offense for which a person is on probation, not the new criminal charge that tolls the probationary period.

More than once, I’ve been asked what should happen to violations that arise during a tolled period that comes to an abrupt end on account of the credit-back provision if the charges that tolled the probation do not result in a conviction. There haven’t yet been any appellate cases addressing the question, so we don’t know for sure. My sense is that if the violations can be addressed at all, it would be under authority of G.S. 15A-1344(f). That provision gives the court jurisdiction to act after a period of probation expires if the State has filed a violation report before expiration. It generally kicks in when a violation hearing can’t be held before expiration—either because the probationer absconded or because the violation arose near the end of the period of probation—but I think it could also be read to apply to violations that arise during a tolled period. The probationer is very much on probation even when his or her case is being tolled; the same legislation that added the credit-back provision in 2009 made clear that a “probationer shall remain subject to the conditions of probation, including supervision fees, during the tolled period.” G.S. 15A-1344(g). So, if a violation report is filed before the new criminal charge that was tolling the period of probation is either dismissed or acquitted, it can be said to have been filed “[b]efore the expiration of the period of probation,” thus giving the court power to act on the violation under G.S. 15A-1344(f).

I’d be interested to hear if this situation has come up in practice and, if so, how it was handled.

10 comments on “Probation Violations Arising During a Tolled Period

  1. you said in State v. Duncan, 270 N.C. 241 (1967) that all is needed is evidence to show to a judge that the defendant did in fact violate a condition of probation and that you did not need a conviction based on reasonable doubt to violate a defendant. but now im reading State v. Hardin, 183 N.C. 815 (1922).

  2. anna: I think those cases are about two different things. Duncan is a case about the standard of proof at a probation violation hearing. It says, essentially, that a violation hearing does not have to have all the procedural trappings of a criminal trial. Specifically, probation violations need only be proved to the judge to the judge’s reasonable satisfaction, not to a jury beyond a reasonable doubt.

    Hardin is a case about what to do when the only violation of probation alleged by the state is a new criminal charge of which the defendant is acquitted. Hardin says the acquittal on the new charge should also be the end of any probation violation based on that charge.

  3. could evidence seized from a defendant that was on probation be introduced in a probation violation hearing if that evidence was found by a city police officer that lacked reasonable suspicion to search the defendants vehicle? this question is in reference to NCGS 15(a)-1343(b)(14).

  4. sean: If this probationer committed his or her offense after December 1, 2009, and was thus subject to the new default warrantless search conditions, law enforcement could search the vehicle upon a reasonable suspicion that the probationer was engaged in criminal activity or possessed a firearm or other deadly weapon. Even if the search were improper, under State v. Lombardo, 74 N.C. App. 460 (1985), the exclusionary rule does not apply at probation revocation hearings, and so the evidence could potentially be introduced. That’s not the rule in all jurisdictions, but it appears to be the law in North Carolina.

    • could that same evidence be introduced in a criminal jury trial?

  5. do you think a reckless driving conviction ncgs 20-140 could result in a violation report and a defendant being revoked?

  6. or speeding over 15mph ncgs 20-141 j1?

  7. sean: I think it could. Class 3 misdemeanors are the only crimes that may not result in revocation. G.S. 15A-1344(d). Reckless driving under G.S. 20-140 is a Class 2 misdemeanor.

  8. So let’s assume a very hypothetical defendant commits an offense in June 2009, is put on 30 months probation in February of 2010, then commits a new offense in March of 2011. He is convicted of that new offense in November of 2012. His probation, per the judgment expired in October of 2012. As of today a violation has not been filed. Since the tolling provisions have been written out of the 15A-1344 under Justice Reinvestment, is his probation officer SOL on filing a violation for him? The session bill quoted in this article states that it was applicable to offenses committed on or after December, 2009, so it seems like my hypothetical defendant may have dodged a bullet. Thanks!

  9. so if i was placed on probation back in 2010 and i was reenstated 2 times but was violated again in 2012 and didnt get picked up on the warrant until 2014 does that mean the statue of limitations are up if the probation that was just reassigned again is telling me i am off of probation ?