Notice, Drinking, and Intensive Probation

Back in July the court of appeals decided State v. Hubbard, a probation revocation case that I mentioned in passing but never really discussed in depth. In Hubbard the defendant's probation officer filed a violation report alleging that Mr. Hubbard violated probation by being "so drunk that he could hardly walk" during a curfew check. At the violation hearing the defendant raised a question about exactly which condition of probation he had violated - he was not, after all, barred from possessing or consuming alcohol. After some initial confusion, the probation officer testified that regular condition number six, "report as directed by the Court or the probation officer to the officer at reasonable times and places and in a reasonable manner," was the condition that had been violated. The trial court, however, found that Hubbard had violated probation by failing to comply with the rules of intensive supervision - a separate, special condition of probation. On appeal, the defendant argued that the court lacked subject matter to revoke his probation for violation of a condition of probation of which he had no notice. The court of appeals disagreed and affirmed the revocation. Mr. Hubbard was correct that in general, the State must give a defendant notice before holding a probation violation hearing, including a statement of the violations alleged. G.S. 15A-1345(e). Probation may not be revoked based on conduct not alleged in the probation violation report. State v. Cunningham, 63 N.C. App. 470 (1983) (improper to revoke probation for property damage [...]