Recycling Probation Violations

Can a court respond to the same offending behavior by a probationer more than once?

In this prior post I talked about the interplay between probation violations and new criminal charges based on the same behavior. Today’s post is focused on probation violation hearings alone. May offending behavior that has already been responded to at a prior hearing be re-alleged and responded to again?

It’s helpful to start with a related question about timing. In talking to people over the years, it seems that there is some sense that when the court holds a probation violation hearing, the slate is wiped clean for any offending behavior that may have happened up to that point. That same logic would extend to barring reconsideration of offending behavior already responded to at an earlier hearing.

The view makes some sense as a matter of judicial economy, but I don’t know of any clear authority for it in the probation statutes or case law. The case that comes closest to addressing it may be State v. Bridges, 189 N.C. App. 524 (2008). In Bridges, the defendant’s probation officer alleged six violations that were brought before the court in February 2007. The defendant moved to continue the matter until March. The court granted the continuance, but only after modifying the defendant’s probation to require him to pay a certain amount of restitution within 10 days. When the March hearing rolled around the defendant was revoked.

On appeal, the defendant argued that the court lacked jurisdiction to revoke him in March because “once a court elected to modify his probation [in February], it could not subsequently revoke his probation for violations that occurred prior to the modification.” Id. at 526.

The court of appeals disagreed, concluding that the February hearing did not adjudicate the previously alleged violations. It was, rather, a mere granting of a motion to continue. And the change the trial court made to the defendant’s restitution was styled as a modification for good cause, not a response to an adjudication of the violation based on the defendant’s delinquency in payment. The court of appeals therefore concluded: “Because the [February] modification order . . . was not based upon an adjudication of the violations alleged in the January 2007 violation report, we hold that the trial court retained jurisdiction [in March] to proceed with the revocation hearing.” Id. at 526–27.

A possible extension of the court’s logic there is that if the earlier hearing had adjudicated those violations, the court would not have retained jurisdiction to respond to them again later. It’s not perfect, I know, but Bridges is generally the case I mention when this sort of question comes up. The defendant in Bridges lost, but the language from the court’s holding can be helpful to a defendant arguing that the State missed its chance to address a violation at an earlier hearing.

A recent unpublished case, State v. Powell, offers a less forgiving view on the related question of whether the same offending behavior may be responded to again at a subsequent hearing.

In Powell, the defendant was on probation for a felony. In March 2015, his probation officer filed a violation report alleging a violation of the technical condition that he “possess no firearm, explosive device or other deadly weapon.” The violation was based on a shotgun found during a search of his residence. At the hearing on the violation (held a mere three days later, by the way), the court found the violation and extended probation by 12 months.

About five months later, the defendant’s probation officer filed another violation report. One of the allegations was a violation of the “commit no criminal offense” condition based on the defendant’s commission of the crime of possession of firearm by a felon. The violation report mentioned the same shotgun found during the same March 2015 search—the one that had already been responded to as a technical violation. This time, the court revoked.

The defendant appealed, arguing that the court could not revoke probation based on the offending behavior that the court had previously relied upon to extend. His argument centered around notions of double jeopardy and collateral estoppel.

The court of appeals affirmed the revocation, rejecting both arguments. Double jeopardy, the court said, simply does not apply at probation violation proceedings. And collateral estoppel did not bar the later finding related to the gun. If anything, the court reasoned, the finding at the second hearing was consistent with the first, not contrary to it in a way that would be binding against the State. The court did note that things might be different if, at the first hearing, the court had determined that the defendant did not have a gun. But that is not what happened, and so the court expressed no opinion about that scenario.

Powell is unpublished, but worth noting for at least two reasons. First, going back to the timing issue with which I started this post, the “commit no criminal offense” violation in Powell was clearly based on behavior that occurred before the first hearing, but the court saw no problem with the State taking another hack at it later—even though it had already been responded to once.

Second, Powell is an interesting twist on the “commit no criminal offense” condition. It is not uncommon for a new criminal offense violation to overlap with a technical violation. The gun possession/possession of firearm by a felon example in Powell is a good one. “Use, possess, or control”/possession of controlled substance is another one that comes up a lot. We know from previous cases, discussed here, that an alleged technical violation cannot, at the last minute, be reframed as a commit no criminal offense and used as a basis to revoke—even the facts might support either approach. The defendant is entitled to notice of a revocation-eligible violation before he or she may be revoked. With that (and Bridges) in mind, I might previously have advised the State to think in advance about whether it wanted to pursue alleged offending behavior as a technical violation or as a new criminal offense, and then style the violation report accordingly.

Powell indicates that this may not be an either/or proposition for the State. It could be both. The State can prove the offending behavior as a technical violation; respond to it by extension, CRV, or some other sanction aside from revocation; and then circle back around to it as a new criminal offense later—perhaps after waiting for the defendant to have his or her day in court on a new criminal charge.

One final wrinkle of note: if Probation responds to a violation through delegated authority, that really should be the end of the matter. Probation policy on delegated authority includes a statement saying that “[o]nce noncompliance has been addressed through the delegated authority process, it cannot be included on any future violation report.” So they limit themselves in that way. Note, however, that there is no similar policy statement related to noncompliance addressed by the court.