Waiving a Probation Violation Hearing

A probationer is entitled to a hearing on an alleged probation violation, unless the hearing is waived. G.S. 15A-1345(e). What does it mean to waive a probation violation hearing? As a result of legislation passed in 2013, the answer to that question matters more than it used to for probation violations in district court. Ordinarily, when a person’s probation is revoked or a split sentence is imposed in district court, the probationer may appeal to superior court for a de novo violation hearing. G.S. 15A-1347. (Other modifications of probation, including imposition of confinement in response to violation, are not appealable, as discussed here.) Under new G.S. 15A-1347(b), “if a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court.” The new law appears to apply to probation violations occurring on or after December 1, 2013—language I generally interpret to refer to the date of the alleged offending behavior, not the date of the hearing. S.L. 2013-385. The problem is that a waiver of a probation violation hearing is not as clear of a thing—not as identifiable of a moment—as a guilty plea to a new criminal charge. Aside from the mention of a hearing waiver in G.S. 15A-1345(e), the statutes don’t really say anything about it. What little case law we have has stressed that a probation violation hearing is not a formal trial, and that “[u]nlike when a defendant pleads guilty, there [...]