Some FAQ about Probation Violation Appeals

Today’s post gives my best answers to a few frequently asked questions about appeals of probation violation hearings. Which outcomes of a probation violation hearing may be appealed. Revocation or imposition of special probation. G.S. 15A-1347(a). There is no right to appeal the imposition of other sanctions, such as electronic house arrest or community service. State v. Edgerson, 164 N.C. App. 712 (2004). To the extent that the procedure for imposing contempt in lieu of revocation under G.S. 15A-1344(e1) incorporates regular contempt procedures from Chapter 5A, a defendant probably may appeal contempt confinement. See G.S. 5A-17. What about Confinement in Response to Violation (CRV)? May it be appealed? We know from State v. Romero, 228 N.C. App. 348 (2013), that there is no right to appeal a non-terminal CRV (that is, a CRV period that does not use up the entirety of a defendant’s suspended sentence). But in Romero, the court of appeals explicitly declined to express any opinion about the appealability of a terminal CRV. Id. at 366 n. 1 (“We decline to express any opinion on the issue of whether CRV under such a circumstance would constitute a de facto revocation, as the time remaining on Defendant's maximum imposed sentence far exceeds 90 days.”). No subsequent case has taken up the issue. Nevertheless, I have heard of many instances of defendants being told—often by a clerk—there is no right to appeal any CRV, including a terminal one. With no appellate case on point, I’m inclined to say it’s an open question. [...]