State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_15A > GS_15A-1344

§ 15A‑1344.  Response toviolations; alteration and revocation.

(a)        Authority to Alteror Revoke. – Except as provided in subsection (a1) or (b), probation may bereduced, terminated, continued, extended, modified, or revoked by any judgeentitled to sit in the court which imposed probation and who is resident orpresiding in the district court district as defined in G.S. 7A‑133 orsuperior 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 theprobationer violates probation, or where the probationer resides. Upon afinding that an offender sentenced to community punishment under Article 81Bhas violated one or more conditions of probation, the court's authority tomodify the probation judgment includes the authority to require the offender tocomply with conditions of probation that would otherwise make the sentence anintermediate punishment. The district attorney of the prosecutorial district asdefined in G.S. 7A‑60 in which probation was imposed must be givenreasonable notice of any hearing to affect probation substantially.

(a1)      Authority toSupervise Probation in Drug Treatment Court. – Jurisdiction to supervise andrevoke probation imposed in cases in which the offender is required toparticipate in a drug treatment court is as provided in G.S. 7A‑272(e)and G.S. 7A‑271(f). Proceedings to modify or revoke probation in thesecases must be held in the county in which the drug treatment court.

(b)        Limits onJurisdiction to Alter or Revoke Unsupervised Probation. – If the sentencingjudge has entered an order to limit jurisdiction to consider a sentence ofunsupervised probation under G.S. 15A‑1342(h), a sentence of unsupervisedprobation may be reduced, terminated, continued, extended, modified, or revokedonly by the sentencing judge or, if the sentencing judge is no longer on thebench, by a presiding judge in the court where the defendant was sentenced.

(b1)      Service of Notice ofHearing on Violation of Unsupervised Probation. –

(1)        Notice of a hearingin response to a violation of unsupervised probation shall be given either bypersonal delivery to the person to be notified or by depositing the notice inthe United States mail in an envelope with postage prepaid, addressed to theperson at the last known address available to the preparer of the notice andreasonably believed to provide actual notice to the offender. The notice shallbe mailed at least 10 days prior to any hearing and shall state the nature ofthe violation.

(2)        If notice is givenby depositing the notice in the United States mail, pursuant to subdivision (1)of this subsection, and the defendant does not appear at the hearing, the courtmay do either of the following:

a.         Terminate theprobation and enter appropriate orders for the enforcement of any outstandingmonetary obligations as otherwise provided by law.

b.         Provide for othernotice to the person as authorized by this Chapter for further proceedings andaction authorized by Article 82 of Chapter 15A of the General Statutes for aviolation of a condition of probation.

Ifthe person is present at the hearing, the court may take any further actionauthorized by Article 82 of Chapter 15A of the General Statutes for a violationof a condition of probation.

(c)        Procedure onAltering or Revoking Probation; Returning Probationer to District WhereSentenced. – When a judge reduces, terminates, extends, modifies, or revokesprobation outside the county where the judgment was entered, the clerk mustsend a copy of the order and any other records to the court where probation wasoriginally imposed. A court on its own motion may return the probationer to thedistrict court district as defined in G.S. 7A‑133 or superior courtdistrict or set of districts as defined in G.S. 7A‑41.1, as the case maybe, where probation was imposed or where the probationer resides for reduction,termination, continuation, extension, modification, or revocation of probation.In cases where the probation is revoked in a county other than the county oforiginal conviction the clerk in that county must issue a commitment order andmust file the order revoking probation and the commitment order, which willconstitute sufficient permanent record of the proceeding in that court, andmust send a certified copy of the order revoking probation, the commitmentorder, and all other records pertaining thereto to the county of originalconviction to be filed with the original records. The clerk in the county otherthan the county of original conviction must issue the formal commitment to theNorth Carolina Department of Correction.

(d)        Extension andModification; Response to Violations. – At any time prior to the expiration ortermination of the probation period or in accordance with subsection (f) ofthis section, the court may after notice and hearing and for good cause shownextend the period of probation up to the maximum allowed under G.S. 15A‑1342(a)and may modify the conditions of probation. A hearing extending or modifyingprobation may be held in the absence of the defendant, if he fails to appearfor the hearing after a reasonable effort to notify him. If a probationerviolates a condition of probation at any time prior to the expiration ortermination of the period of probation, the court, in accordance with theprovisions of G.S. 15A‑1345, may continue him on probation, with orwithout modifying the conditions, may place the defendant on special probationas provided in subsection (e), or, if continuation, modification, or specialprobation is not appropriate, may revoke the probation and activate thesuspended sentence imposed at the time of initial sentencing, if any, or mayorder that charges as to which prosecution has been deferred be brought totrial; provided that probation may not be revoked solely for conviction of aClass 3 misdemeanor. The court, before activating a sentence to imprisonmentestablished when the defendant was placed on probation, may reduce thesentence, but the reduction shall be consistent with subsection (d1) of this section.A sentence activated upon revocation of probation commences on the dayprobation is revoked and runs concurrently with any other period of probation,parole, or imprisonment to which the defendant is subject during that periodunless the revoking judge specifies that it is to run consecutively with theother period.

(d1)      Reduction of InitialSentence. – If the court elects to reduce the sentence of imprisonment for afelony, it shall not deviate from the range of minimum durations established inArticle 81B of this Chapter for the class of offense and prior record levelused in determining the initial sentence. If the presumptive range is used forthe initial suspended sentence, the reduced sentence shall be within thepresumptive range. If the mitigated range is used for the initial suspendedsentence, the reduced sentence shall be within the mitigated range. If theaggravated range is used for the initial suspended sentence, the reducedsentence shall be within the aggravated range. If the court elects to reducethe sentence for a misdemeanor, it shall not deviate from the range ofdurations established in Article 81B for the class of offense and priorconviction level used in determining the initial sentence.

(e)        Special Probationin Response to Violation. – When a defendant has violated a condition ofprobation, the court may modify his probation to place him on special probationas provided in this subsection. In placing him on special probation, the courtmay continue or modify the conditions of his probation and in addition requirethat he submit to a period or periods of imprisonment, either continuous ornoncontinuous, at whatever time or intervals within the period of probation thecourt determines. In addition to any other conditions of probation which thecourt may impose, the court shall impose, when imposing a period or periods ofimprisonment as a condition of special probation, the condition that thedefendant obey the Rules and Regulations of the Department of Correctiongoverning conduct of inmates, and this condition shall apply to the defendantwhether or not the court imposes it as a part of the written order. Ifimprisonment is for continuous periods, the confinement may be in either thecustody of the Department of Correction or a local confinement facility.Noncontinuous periods of imprisonment under special probation may only beserved in a designated local confinement or treatment facility. Except forprobationary sentences for impaired driving under G.S. 20‑138.1, thetotal of all periods of confinement imposed as an incident of specialprobation, but not including an activated suspended sentence, may not exceedone‑fourth the maximum sentence of imprisonment imposed for the offense.For probationary sentences for impaired driving under G.S. 20‑138.1, thetotal of all periods of confinement imposed as an incident of specialprobation, but not including an activated suspended sentence, shall not exceedone‑fourth the maximum penalty allowed by law. No confinement other thanan activated suspended sentence may be required beyond the period of probationor beyond two years of the time the special probation is imposed, whichevercomes first.

(e1)      Criminal Contempt inResponse to Violation. – If a defendant willfully violates a condition ofprobation, the court may hold the defendant in criminal contempt as provided inArticle 1 of Chapter 5A of the General Statutes. A finding of criminal contemptby the court shall not revoke the probation. If the offender serves a sentencefor contempt in a local confinement facility, the Department of Correctionshall pay for the confinement at the standard rate set by the General Assemblypursuant to G.S. 148‑32.1(a) regardless of whether the offender would beeligible under the terms of that subsection.

(e2)      Mandatory Satellite‑BasedMonitoring Required for Extension of Probation in Response to Violation byCertain Sex Offenders. – If a defendant who is in the category described byG.S. 14‑208.40(a)(1) or G.S. 14‑208.40(a)(2) violates probation andif the court extends the probation as a result of the violation, then the courtshall order satellite‑based monitoring pursuant to Part 5 of Article 27Aof Chapter 14 of the General Statutes as a condition of the extended probation.

(f)         Extension,Modification, or Revocation after Period of Probation. – The court may extend,modify, or revoke probation after the expiration of the period of probation ifall of the following apply:

(1)        Before theexpiration of the period of probation the State has filed a written violationreport with the clerk indicating its intent to conduct a hearing on one or moreviolations of one or more conditions of probation.

(2)        The court finds thatthe probationer did violate one or more conditions of probation prior to theexpiration of the period of probation.

(3)        The court finds forgood cause shown and stated that the probation should be extended, modified, orrevoked.

(4)        If the court opts toextend the period of probation, the court may extend the period of probation upto the maximum allowed under G.S. 15A‑1342(a).

(g)        If there arepending criminal charges against the probationer in any court of competentjurisdiction, which, upon conviction, could result in revocation proceedingsagainst the probationer for violation of the terms of this probation, theprobation period shall be tolled until all pending criminal charges areresolved. The probationer shall remain subject to the conditions of probation,including supervision fees, during the tolled period. If the probationer isacquitted or if the new charge is dismissed, the time spent on probation duringthe tolled period shall be credited against the period of probation.  (1977, c. 711, s. 1; 1977,2nd Sess., c. 1147, ss. 11, 11A, 13A; 1979, c. 749, ss. 1‑3; 1981, c.377, s. 7; 1983, c. 536; 1987, (Reg. Sess., 1988), c. 1037, ss. 67, 68; 1993,c. 538, s. 18; 1994, Ex. Sess., c. 19, s. 2; c. 24, s. 14(b); 1993 (Reg. Sess.,1994), c. 767, s. 9; c. 769, s. 21.7(a); 1998‑212, s. 17.21(c); 2003‑151,s. 1; 2006‑247, s. 15(e); 2008‑129, s. 4; 2008‑187, s. 46;2009‑372, s. 11(a), (b); 2009‑411, s. 1; 2009‑452, ss. 3, 4;2009‑516, ss. 9, 10(a), (b).)