Three-Year Review of Probation

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When a probationer has served three years of a probationary period greater than three years, the probation officer is required to bring the case before the court for a mandatory review. The review has one statutory purpose: to give the court an opportunity to terminate probation early.

The three-year review has been a part of North Carolina’s probation law for a long time. Formerly codified in G.S. 15-205.1, it now resides in G.S. 15A-1342(d). The provision applies to all supervised probationers—felons, misdemeanants, and impaired drivers alike. It is not clearly limited to probationers whose probation term exceeded three years from the get-go, and so it probably should be read to include probationers whose original term has been extended such that it is at least three years long.

The statute doesn’t tell us much about the mechanics of the review, but it does say a little. First, it is the probation officer’s responsibility to bring the case before the court for review, and that responsibility is reflected in Community Corrections policy. § C.0612. The review should happen “before a court with jurisdiction to review the probation.” G.S. 15A-1342(d). The statute doesn’t explicitly say which courts have jurisdiction to conduct the review, but any judge from the district where the probation was imposed or where the probationer resides has jurisdiction to terminate probation, so either of those places is probably fine. G.S. 15A-1344(a). My sense is that the review generally happens in the district of residence. The probation officer must give the probationer “reasonable notice” of the review, but the review may be held in the probationer’s absence if he or she chooses not to appear.

Under Community Corrections policy, if a probationer due for review “does not indicate a public safety risk” and “has satisfied all court ordered conditions along with all monetary obligations,” then “the officer should recommend termination.” § C.0612(a). That rule makes an exception for sex offenders, for whom officers are not to recommend early termination. Id.

The three-year review statute does not call for a full-blown probation hearing, and there is no statutory right to counsel at the review. In fact, the only possible outcomes of the review itself are termination or continuation on probation under the same conditions. Before the court may modify or extend probation, the probationer would be entitled to the distinct (and more detailed) notice and hearing procedures spelled out in G.S. 15A-1344(d) (for modifications) or G.S. 15A-1345(e) (for extensions, which includes a right to counsel). And of course the court should not consider any violations that haven’t been filed according to ordinary procedures. In other words, the review should not substitute for a modification or violation hearing.

Though framed by the statute as “mandatory,” three-year reviews don’t always get done. Does a failure to complete a review at the three-year point restrict the court’s authority to act on the case later? No. According to a case decided under the previous version of the law, a failure to hold the review does not limit the court’s subsequent power to revoke probation. State v. Benfield, 22 N.C. App. 330 (1974).

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