Can I Be Put in Jail for a Probation Violation?
Full Question:
Answer:
A probation violation may result in probation being revoked. The answer will depend on all the facts involved. Generally, a probation violation may be charged even if the original term of probation or sentence has elapsed. I suggest you consult a local attorney or public defender who can review all the facts and documents in the case.
Please see the following NC statutes to determine applicability:
7A-272. Jurisdiction of district court; concurrent jurisdiction in
guilty or no contest pleas for certain felony offenses; appellate and
appropriate relief procedures applicable.
**Update notice: This section has been amended by
S.L. 2009-452
**Update notice: This section has been amended by
S.L. 2009-516
(a) Except as provided in this Article, the district court has
exclusive, original jurisdiction for the trial of criminal actions,
including municipal ordinance violations, below the grade of felony, and
the same are hereby declared to be petty misdemeanors.
(b) The district court has jurisdiction to conduct preliminary
examinations and to bind the accused over for trial upon waiver of
preliminary examination or upon a finding of probable cause, making
appropriate orders as to bail or commitment.
(c) With the consent of the presiding district court judge, the
prosecutor, and the defendant, the district court has jurisdiction to
accept a defendant's plea of guilty or no contest to a Class H or I
felony if:
(1) The defendant is charged with a felony in an information filed
pursuant to G.S. 15A-644.1, the felony is pending in district court, and
the defendant has not been indicted for the offense; or
(2) The defendant has been indicted for a criminal offense but the
defendant's case is transferred from superior court to district court
pursuant to G.S. 15A-1029.1.
(d) Provisions in Chapter 15A of the General Statutes apply to a plea
authorized under subsection (c) of this section as if the plea had been
entered in superior court, so that a district court judge is authorized
to act in these matters in the same manner as a superior court judge
would be authorized to act if the plea had been entered in superior
court, and appeals that are authorized in these matters are to the
appellate division.
(e) With the consent of the chief district court judge and the
senior resident superior court judge, the district court has jurisdiction
to preside over the supervision of a probation judgment entered in
superior court in which the defendant is required to participate in a
drug treatment court pursuant to G.S. 15A-1343(b1)(2b) or a therapeutic
court, as defined in subsection (f) of this section, or is participating
in the drug treatment court pursuant to a deferred prosecution agreement
under G.S. 15A-1341(a2). The district court may modify or extend the
probation judgment, but jurisdiction to revoke probation supervised under
this subsection is as provided in G.S. 7A-271(f).
(f) As used in subsection (e) of this section, the term "therapeutic
court" refers to a court, other than drug treatment court established
pursuant to Article 62 of Chapter 7A of the General Statutes, in which a
criminal defendant, either as a condition of probation or pursuant to a
deferred prosecution agreement under G.S. 15A-1341, is ordered to
participate in specified activities designed to address underlying
problems of substance abuse and mental illness that contribute to the
person's criminal activity. The ordered activities shall, at a minimum,
require the person to participate in treatment and attend regular court
sessions of the therapeutic court over an extended period of time. The
senior resident superior court judge and the chief district court judge
shall agree in writing that the therapeutic court is being established
and shall file the written agreement with the Administrative Office of
the Courts before jurisdiction established by subsection (e) of this
section may be exercised by the district court. "
SECTION 3. G.S. 15A-1344(a) reads as rewritten:
"(a) Authority to Alter or Revoke. — Except as provided in subsection
(a1) or (b), probation may be reduced, terminated, continued, extended,
modified, or revoked by any judge entitled to sit in the court which
imposed probation and who is resident or presiding in the district court
district as defined in G.S. 7A-133 or superior court district or set of
districts as defined in G.S. 7A-41.1, as the case may be, where the
sentence of probation was imposed, where the probationer violates
probation, or where the probationer resides. Upon a finding that an
offender sentenced to community punishment under Article 81B has violated
one or more conditions of probation, the court's authority to modify the
probation judgment includes the authority to require the offender to
comply with conditions of probation that would otherwise make the
sentence an intermediate punishment. The district attorney of the
prosecutorial district as defined in G.S. 7A-60 in which probation was
imposed must be given reasonable notice of any hearing to affect
probation substantially."
SECTION 4. G.S. 15A-1344 is amended by adding a new subsection to read:
" (a1) Authority to Supervise and Revoke Probation in Drug Treatment
Court or Therapeutic Court. — Jurisdiction to supervise, modify, and revoke
probation imposed in cases in which the offender is required to participate
in a drug treatment court or a therapeutic court is as provided in G.S.
7A-272(e) and (f) and G.S. 7A-271(f). Proceedings to modify or revoke
probation in these cases must be held in the county in which the drug
treatment court or therapeutic court is located. "
SECTION 5. This act becomes effective October 1, 2009, and applies to
probation judgments entered or deferred prosecution agreements executed on
or after that date.
§ 15A-1345. Arrest and hearing on probation violation.
**Update notice: This section has been amended by
S.L. 2009-412
(a) Arrest for Violation of Probation. — A probationer is subject to
arrest for violation of conditions of probation by a law-enforcement
officer or probation officer upon either an order for arrest issued by
the court or upon the written request of a probation officer, accompanied
by a written statement signed by the probation officer that the
probationer has violated specified conditions of his probation. However, a
probation revocation hearing under subsection (e) may be held without
first arresting the probationer.
(b) Bail Following Arrest for Probation Violation. — If at any time
during the period of probation the probationer is arrested for a
violation of any of the conditions of probation, he must be taken without
unnecessary delay before a judicial official to have conditions of
release pending a revocation hearing set in the same manner as provided
in G.S. 15A-534. If the probationer has been convicted of an offense at
any time that requires registration under Article 27A of Chapter 14 of
the General Statutes or an offense that would have required registration
but for the effective date of the law establishing the Sex Offender and
Public Protection Registration Program, the court must make a finding
that the probationer is not a danger to the public prior to release with
or without bail.
(c) When Preliminary Hearing on Probation Violation Required. — Unless
the hearing required by subsection (e) is first held or the probationer
waives the hearing, a preliminary hearing on probation violation must be
held within seven working days of an arrest of a probationer to determine
whether there is probable cause to believe that he violated a condition
of probation. Otherwise, the probationer must be released seven working
days after his arrest to continue on probation pending a hearing.
(d) Procedure for Preliminary Hearing on Probation Violation. — The
preliminary hearing on probation violation must be conducted by a judge
who is sitting in the county where the probationer was arrested or where
the alleged violation occurred. If no judge is sitting in the county
where the hearing would otherwise be held, the hearing may be held
anywhere in the district court district as defined in G.S. 7A-133 or
superior court district or set of districts as defined in G.S. 7A-41.1,
as the case may be. The State must give the probationer notice of the
hearing and its purpose, including a statement of the violations
alleged. At the hearing the probationer may appear and speak in his own
behalf, may present relevant information, and may, on request, personally
question adverse informants unless the court finds good cause for not
allowing confrontation. Formal rules of evidence do not apply at the
hearing. If probable cause is found or if the probable cause hearing is
waived, the probationer may be held for a revocation hearing, subject to
release under the provisions of subsection (b). If the hearing is held
and probable cause is not found, the probationer must be released to
continue on probation.
(d2) When conditions of pretrial release are being determined for a
defendant who is charged with a felony offense and the defendant is
currently on probation for a prior offense, a judicial official shall
determine whether the defendant poses a danger to the public prior to
imposing conditions of pretrial release and must record that
determination in writing. This subsection shall apply to any judicial
official authorized to determine or review the defendant's eligibility
for release under any proceeding authorized by this Chapter.
(1) If the judicial official determines that the defendant poses a
danger to the public, the judicial official must impose condition (4) in
subsection (a) of this section instead of condition (1), (2), or (3).
(2) If the judicial official finds that the defendant does not pose a
danger to the public, then conditions of pretrial release shall be
imposed as otherwise provided in this Article.
(3) If there is insufficient information to determine whether the
defendant poses a danger to the public, then the defendant shall be
retained in custody until a determination of pretrial release conditions
is made pursuant to this subdivision. The judicial official that orders
that the defendant be retained in custody shall set forth, in writing,
the following at the time that the order is entered:
a. The defendant is being held pursuant to this subdivision.
b. The basis for the judicial official's decision that additional
information is needed to determine whether the defendant poses a danger to
the public and the nature of the necessary information.
c. A date, within 96 hours of the time of arrest, when the defendant
shall be brought before a judge for a first appearance pursuant to
Article 29 of this Chapter. If the necessary information is provided to
the court at any time prior to the first appearance, the first available
judicial official shall set the conditions of pretrial release. The judge
who reviews the defendant's eligibility for release at the first
appearance shall determine the conditions of pretrial release as provided
in this Article. "
(e) Revocation Hearing. — Before revoking or extending probation, the
court must, unless the probationer waives the hearing, hold a hearing to
determine whether to revoke or extend probation and must make findings to
support the decision and a summary record of the proceedings. The State
must give the probationer notice of the hearing and its purpose,
including a statement of the violations alleged. The notice, unless
waived by the probationer, must be given at least 24 hours before the
hearing. At the hearing, evidence against the probationer must be
disclosed to him, and the probationer may appear and speak in his own
behalf, may present relevant information, and may confront and
cross-examine adverse witnesses unless the court finds good cause for not
allowing confrontation. The probationer is entitled to be represented by
counsel at the hearing and, if indigent, to have counsel appointed.
Formal rules of evidence do not apply at the hearing, but the record or
recollection of evidence or testimony introduced at the preliminary
hearing on probation violation are inadmissible as evidence at the
revocation hearing. When the violation alleged is the nonpayment of fine
or costs, the issues and procedures at the hearing include those
specified in G.S. 15A-1364 for response to nonpayment of fine.