The following article was authored by Cynthia Everson, a Concord NC attorney (pictured above). More information about Cynthia can be found on her website http://eversonlawoffice.net/.
Often, unrepresented probationers admit to probation violations, only to be shocked when the judge imposes a CRV or revocation, landing them in jail or prison for up to 90 days (CRV) or longer (revocation). Under the Justice Reinvestment Act, which applies to violations on or after December 1, 2011, the only initial probation violations for which the court may revoke probation and activate the probationer’s underlying sentence are (1) new criminal offenses and (2) statutory absconding. The criminal offenses must either be actual convictions or offenses proven to the judge to have occurred by an independent finding to the judge’s “reasonable satisfaction.” As such, simply being charged with a new crime is not grounds for revocation. Also, revocation based on absconding is now limited to the definition of “absconding” in N.C. General Statute 15A‐1343(b)(3), which is narrower than what many probation officers consider as absconding. Instead of just failing to report to probation or being generally difficult to find (as in, for example, probationers without stable addresses), a person only absconds when he or she either (1) willfully avoids supervision or (2) willfully makes his or her whereabouts unknown to the supervising probation officer.
Under the Justice Reinvestment Act, for most technical violations, revocation is no longer an option, unless, of course, the probationer has already been violated and served two “up to” 90-day CRV periods of incarceration (misdemeanors) or two “flat” 90-day CRV periods (felonies). If a probationer has previously been violated and served up to two CRV’s, then his or her probation can be revoked for any later violation. Also, notably, under State v. Romero, decided in 2013, CRV periods of confinement cannot be appealed.
Violations Must Be Willful
Violations must be willful, which means more than just not complying, but also implies an ability to comply. If a person simply is unable to pay costs and fines, (like many probationers with pending disability cases), then that person’s monetary violation is likely not willful. Of course, without an attorney, the probationer may not know this and may admit the violation just because he or she has not paid. Then, if the court imposes a CRV sentence, the probationer is stuck doing the time with no right of appeal. Because of these and other complexities in probation violation hearings (including limited appeal rights), all people charged with probation violations should have the help of an experienced criminal defense attorney.
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What if you are on probation on Edgecombe county can a judge in nash county revote ur probation
I live in Newton NC and my nephew is on probation for DUI and he got a new charge for DUI.Is it possible for him to be reinstated on probation under the NC General Statute 15A-1344[d]. The Attorney that I spoke to said that my nephew had to do 60 days in jail for probation violation but the law states other wise. Please e-mail me back.
Bobby: My own position on your question is that the new DWI charge does not constitute grounds for revoking his probation, at least not yet, since it, at this point, is “just a charge” and not a conviction. Thus, he would not need to go to jail for a probation violation which would otherwise activate his “suspended sentence” for the first DWI. That being said, he might have to pull time for the first DWI for which he got probation if he is eventually convicted of the second since the second occurred when he was on probation for the first. Here in Wake county it is sometimes (not often enough) the case that we can get the first probation terminated earlier than planned (“terminate unsuccessfully”) to get rid of the possibility that he might do time on the first AND second DWI. The second, unfortunately, often carries with it a minimum jail term which is mandatory and unavoidable. (But that’s a whole lot beyond this conversation.) You might want to post the case here on BernieSez and have some lawyers down where you are weigh in. They could give you a better idea of how it goes as a local matter. I’m in Raleigh so what I say certainly does not have the experience of a practitioner local to Newton.