Revoked, but Still on Probation?

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I was surprised by one of the provisions included in the omnibus criminal law bill, S.L. 2015-247, that Jeff summarized yesterday. The act amended G.S. 15A-1347 to say that when a defendant whose probation is revoked in district or superior court appeals that revocation, “probation supervision will continue under the same conditions until the termination date of the supervision period or disposition of the appeal, whichever comes first.” The change was effective immediately when the governor signed it on September 23, and people are already asking what it means. Here are my thoughts.

First, a bit of background. Under existing law, no statute clearly spelled out what happened when a revoked probationer appealed his or her revocation—either from district court to superior court for a de novo revocation hearing, or from superior court to the appellate division for appellate review. In the absence of a specific revocation appeal statute, people generally applied the statutes governing appeals of front-end active sentences. For an appeal of a district court revocation, the activated sentence would, under G.S. 15A-1431(f1), be stayed pending the de novo violation hearing in superior court. For an appeal of a superior court revocation, G.S. 15A-1451(a)(3) indicated that confinement was stayed only when the defendant is released pursuant to Article 26 of Chapter 15A (Bail)—typically, if at all, under an appeal bond. Not many revoked probationers get bail, and so most of them go to prison pending their appeal.

Occasionally, however, a judge will allow an activated sentence to be stayed by imposing an appeal bond. It was apparently unclear to probation officers what they could or should do during the pendency of those appeals. On the one hand, probation was over because it had been revoked, and so perhaps they should do nothing. On the other hand, the defendant was still present in the community, and might be returning to probation if he or she won on appeal. Erring on the side of public safety, in cases where a revoked probationer appealed from superior court to the court of appeals, Community Corrections policy instructed the officer to “continue to supervise the offender until a final disposition is entered or the case meets its expiration date.” § D.0702(o)(1). But there was always concern about what an officer was actually empowered to do in a case that had already been revoked.

Corrections officials sought legislative clarification of their authority to supervise a revoked probationer during the pendency of his or her appeal. That clarification came in the form of new G.S. 15A-1347(c).

The new law says that when a defendant appeals a probation revocation from district or superior court, “probation supervision will continue under the same conditions until the termination date of the supervision period or disposition of the appeal, whichever comes first.” That language is—to borrow a classic Institute of Government turn of phrase—susceptible to multiple interpretations.

One reading of the new law is that it is merely authorizes a probation officer to keep an eye on a revoked probationer during the pendency of his or her appeal, at least up to the point at which probation would have naturally expired. (The law actually refers to the termination date of the supervision, but, in context, I think it probably means expiration.) Under that interpretation, G.S. 15A-1451 would continue to apply to keep most revoked probationers behind bars during the pendency of their appeal, because no provision expressly kicks in to stay the activated sentence unless the court imposes an appeal bond. So, the offender may be under “probation supervision,” but not actually at liberty during the pendency of the appeal. The ultimate practical result would be that probation officers would have clearer authority to do the thing they were already doing as a matter of administrative policy: supervising the rare revoked offender who gets an appeal bond.

A perhaps more literal reading of the new law is that it trumps G.S. 15A-1451 and operates to keep any revoked probationer who appeals out of prison and on probation during the pendency of his or her appeal—appeal bond or no appeal bond. In other words, even if you get revoked, you remain on probation if you appeal (at least up to the probation would have expired), because the law says “probation supervision will continue.” Under that view, any conflict between G.S. 15A-1451 and the revised law is resolved in favor of the later-enacted, probation violation–specific provision in new G.S. 15A-1347(c).

The second interpretation may be the one more in line with the plain language of the revised law, but it would certainly raise some technical issues. Can the offender who violates during the term of post-revocation supervision (a term I just made up) be revoked again? Can the probation officer use delegated authority, including quick dips, on an offender who at that point would seem not to have a suspended sentence? When the probation period expires, does the offender simply report to prison?

The second reading would also raise some policy concerns. In a post–Justice Reinvestment world where relatively few probationers can be revoked, to now say that even the ones that do get revoked must be allowed to remain on probation during the pendency of an appeal may be troubling to some from a public safety standpoint.

If there’s any silver lining, it’s that neither reading results in much change for the probationer revoked in district court. In those cases, existing law already undoes the revocation in anticipation of the de novo appeal, putting the defendant back on probation with the violation pending in superior court. For superior court appeals, however, the chosen interpretation will generally be the difference between prison and probation. And of course other interpretations are possible. I welcome your thoughts and any information you have about what it happening in practice.

3 comments on “Revoked, but Still on Probation?

  1. What’s your thoughts on new violations that occur while the appeal is pending from Disttict to Supetior Court? Where would the violation report be filed and heard, District or Superior Court?

  2. Jamie, I disagree with your statement that “For an appeal of a superior court revocation, G.S. 15A-1451(a)(3) indicated that confinement was stayed only when the judge imposed an appeal bond.” 15A-1451(a)(3) does not specify that the conditions of release be an appeal bond. It says “Confinement is stayed only when the defendant has been released pursuant to Article 26, Bail.” Under the statute, if the probationer had been released under Article 26 before the probation violation hearing then his confinement would be stayed on appeal because he “has been released pursuant to Article 26, Bail.” That would be so even if the probationer were released on a written promise to appear. There need not be an appeal bond for the probationer to be released pursuant to Article 26. The statute does not even say that conditions of release must be revisited. The presumption is that the conditions already in place stay in place unless the Court modifies those conditions, isn’t it? For District-to-Superior Court appeals that presumption is codified in GS 15A-1431(e): “Any order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order.”

  3. I am hoping that second interpretation is what was intended. I have had appellate clients who have had their probation revoked and sentence activated erroneously who have spent about a year in prison pending the appeal, only to have it overturned by the appellate courts. The rather complicated revisions of the statutes involving tolling, absconding, etc. mean that trial judges are making mistakes and revoking people improperly. It’s unfair for our clients to spend time in prison awaiting the redress of these errors– away from their jobs, kids, etc.

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