The N.C. Supreme Court has clarified the rules covering when probation begins for a misdemeanor conviction. The case involves a Buncombe County man who initially sought to have his case retried before a jury but dropped his appeal before the new trial.
Preston Smith was convicted in District Court on Dec. 6, 2000 of misdemeanor assault on a female. He was to serve 90 days in jail if he failed to successfully complete one year of supervised probation. One of the probation requirements was that he pay $302 in fines and court costs in a timely manner. Smith didn’t pay the full amount and on Jan. 24, 2002 his probation officer filed a probation violation report.
Probation violation reports filed after probation expires have no legal effect. The question state courts have struggled with for three years is whether Smith was still on probation when the report was filed.
Under the North Carolina law, a district court judge hears and decides misdemeanor cases. If found not guilty, the case is over. If convicted, defendants have the absolute right to “appeal” to superior court. This “appeal” is not an appeal in the traditional sense, but rather it’s a new trial (trial de novo), this time before a jury. No weight is given to the trial in district court at the new hearing.
The complicating fact, or in Smith’s case, is that he first appealed to superior court but withdrew his request Jan. 29, 2001, before a new trial was conducted. A district court judge ordered the probation violation dismissed as untimely, but a superior court judge disagreed, finding that probation began Jan 29. 2001 when the appeal to superior court was dropped and reinstated the violation.
The N.C. Court of Appeals found that Smith’s probation had begun Dec. 6, 2000 and the violation report was filed too late. To reach this conclusion, the appeals court compared the language governing appeals from district court to superior court (N.C.G.S. § 15A-1431, in Article 90 of Chapter 15A) with that covering appeals from Superior Court to the Court of Appeals or Supreme Court (N.C.G.S. § 15A- 1451, in Article 91). The law covering appeals to the state’s two highest courts suspends probation while the appeal is heard. Because the law covering appeals from district court to superior court contains no such provision, the Court of Appeals held that probation was not suspended in such cases.
The Supreme Court, however, rejected this line of reasoning and found the probation violation report to have been timely.
“The Court of Appeals comparison of these two statutes is a time-honored method of analysis,” wrote Justice Robert Edmunds for the high court.
“However, we do not believe this process is appropriate in this case because the types of appeals addressed by the statutes are distinct and are designed to protect different interests and achieve different ends. Moreover, we need not refer to Article 91 because the provisions of Article 90 adequately address the situation presented here. Section 15A-1431(e) provides that a defendant appealing a conviction to superior court for a trial de novo is subject to the terms of pretrial release… The absence of any reference in this statute or in Article 90 to the effect of an appeal on probation is readily understandable in light of the logical impossibility of a defendant being simultaneously on pretrial release and on probation for the same offense.”
The case is State v. Preston Smith, (407PA04).