New Criminal Charges as a Violation of Probation

It is a regular condition of probation that a probationer must “commit no criminal offense in any jurisdiction.” G.S. 15A-1343(b)(1). The condition is straightforward enough in theory, but it raises some tricky issues in practice. The main difficulty stems from the question of when a probationer can be said to have “committed” a new criminal offense. Is it when the new charge is brought? Or is it upon conviction of the new crime? In 1960, the Supreme Court of North Carolina said that a pending criminal charge should not serve as the sole basis for revoking an offender’s probation “unless there is a conviction on the pending charge or there is a plea of guilty entered thereto.” State v. Guffey, 253 N.C. 43 (1960) (emphasis added). Read alone, that language would appear to require the State to proceed on a new criminal charge first and reach the related probation violation only in the event of a conviction. Subsequent cases have, however, indicated that a probationer is not entitled to a jury trial on a new charge before probation may be revoked for commission of a new criminal offense. Instead, the court hearing the probation violation can make independent findings—to its reasonable satisfaction—that the offender violated probation by committing a new criminal act. State v. Monroe, 83 N.C. App. 143 (1986). What the court cannot do is determine that a new crime was committed based on the bare fact of the new charge alone. Even if it is legally permissible to hold [...]