Adequate Notice of a Probation Violation: State v. Moore

When it comes to giving proper notice of a probation violation, what is the critical thing: identifying the condition actually violated, or describing the behavior constituting the violation? The supreme court tells us in State v. Moore. Since Justice Reinvestment, not all violations of probation are created equal. Violations of certain conditions (commit no criminal offense and absconding) allow for revocation. For other violations—so-called technical violations—the court can respond with confinement in response to violation (CRV), a quick dip in the jail, or some other response aside from revocation (or of course no response at all). With that backdrop in mind, the court of appeals has held several times that before a defendant may be revoked, he or she must be put on notice of a revocation-eligible violation. And that notice must reference a violation of a revocation-eligible condition: a new criminal offense, absconding, or some other violation after two prior CRVs. State v. Tindall, 227 N.C. App. 183 (2013) (discussed here). In Tindall, for example, the court said it was improper to revoke based on a drug possession violation alleged as a violation of the “use, possess or control” condition—even if the alleged drug possession could, factually, support a new criminal charge. The court could not swap horses from technical to revocation-eligible when the defendant wasn’t on notice that revocation might be at stake. See also State v. Kornegay, 228 N.C. App. 320 (2013) (violations of technical drug and firearm possession conditions couldn’t be reframed as criminal offenses without advance [...]