There are two types of probation – supervised or unsupervised – and within supervised probation, there are additional requirements that may be imposed, including intensive probation, drug conditions, “school conditions”, and so forth. This guide on Probation Violations from the UNC School of Government explains the basics of probation violations.
If a person violates probation, that person may be arrested and a probation violation hearing will be held. At a probation violation hearing a judge of the same level as the sentencing judge will make a determination based on evidence that “reasonably satisfies” him or her that the defnedant/probationer has violated the valid terms of probation willfully or without legal excuse. State v. White 129 NC App 52 (1998).
First, the term of probation must be shown to have been valid. The regular terms of probation are valid, however certain probation terms may be invalid. For instance, a judge may not impose the requirement that the person attend church, as that would be unconstitutional. Similarly, a judge may not impose the requirement that the person attend Alcoholics Anonymous as AA explicitly has a theological or religious component which is a belief in a higher power, i.e. God.
Second, the violation must have occurred within a valid period of probation. If the violation occurred prior to the beginning of probation or occurred after probation ended, then the violation is not a violation at all. In addition, if the original sentencing judge imposed an extended period of probation that was outside the statutorily presumptive period for the type of crime and punishment, then the original sentencing judge had to have made a finding that such a period was necessary in this particular case. If the original sentencing judge failed to do so, then violation may have occurred outside of a valid period of probation and may not be violation at all.
In order for a court to have jurisdiction over a violation, the violation report itself must be filed before the expiration of the probationary period. State v. Hicks, 148 N.C. App. 203 (2001).
Evidence presented at a probation hearing is not subject to the normal rules of evidence, which permits the use of hearsay. Hearsay alone, however, is not supposed to form the sole basis upon which a judge is “reasonably satisfied” that a violation has happened.
If a judge finds that a probation violation has occured, the judge may impose the following punishments:
- Probation is Continued – A judge may simply continue the individual on probation.
- Modification – Upon good cause shown, a judge may impose additional valid conditions upon the probationer. For instance, the judge may require the person to get a GED, or comply with drug conditions.
- Extension – The judge may extend the probationary period, but no longer than a total of 5 years (unless certain special conditions are satisfied which require the probationer’s consent).
- Termination – The judge may terminate probation, which means that the person is not sent to prison and is not continued on probation.
- Contempt – The judge may find the probationer in contempt and order up to 30 days in jail. A finding of contempt must be made by a “beyond a reasonable doubt” standard, and the time the probationer serves on a contempt violation counts against the suspended sentence if it is ever activated.
- Revocation – The judge may revoke the probationer, which means that the probationer will serve out the suspended sentence. In revoking the probationer, the judge may reduce the sentence, but may not go below the statutory minimum established for that class of offense and that probationer’s prior record level at the time he was sentenced.
As of December 1, 2011, North Carolina has modified the way probation violations are handled for all violations reported after that date as part of the Justice Reinvestment Act.
One important change permits a judge to impose a 90 day sentence (as opposed to an outright revocation) for the first and second violations of probation, except for violations involving absconding or the commission of a new crime. The court may not revoke probation unless the defendant has previously received a total of two periods of confinement under this subsection.