Probation revocation is a big deal, which is why it’s something that in most cases can be appealed. The key is to understand how to go about appealing it.
The truth is, appealing a probation revocation in North Carolina isn’t easy for many reasons, which is why having an experienced attorney on your side is a must. Here’s what you need to know about appealing your probation revocation.
What Is an Appeal and Steps for Filing One in North Carolina?
An appeal is a legal proceeding in which you ask for a judicial review of your revocation hearing. It’s not a new trial or even a retrial of your case, but simply a way to ask a judge to look at the evidence that was presented for your revocation.
You have a right to file when you believe an error was made in either procedure or in the judge’s interpretation of the law in the case. Below are the three basic steps for filing an appeal.
Get a Copy of Your Court File
The first thing you must do in order to appeal your probation revocation is to get a complete copy of your court file. This includes any file numbers and all the documents related to the revocation of your probation.
Create a Timeline
You also need to create a timeline of the proceedings in the trial court. This must be a chronological numbered list in order from the date of the offense to this notice of appeal.
This helps to identify the statutes that may apply to the case as well as whether or not the trial court even had the authority to revoke your probation.
Work with an Attorney
This paperwork is something that an attorney has experience putting together so if you don’t simply leave it up to your legal team to complete, it is best to at least have them review what you’ve put together yourself.
Who Has the Right to Appeal?
Under North Carolina law, there are only certain types of orders of probation revocation that can be appealed. You can appeal your revocation if:
- The violation of probation activated your sentence and you were sent to jail
- The violation of probation imposes special probation such as a split sentence
- Any order that imposed a terminal period of Confinement in Response to Violation
Who Doesn’t Have the Right to an Appeal
You cannot appeal an order for the revocation of your probation if:
- The probation was modified in such a way that doesn’t result in special probation
- Orders that impose a non-terminal period of Confinement in Response to Violation
- An order that revokes violation based on the voluntary decision of the defendant to serve the sentence
Which Court Hears Your Appeal
It’s also important to note that if your probation was revoked in a district court that the case can only be appealed to the superior court. If you submit an appeal to the Court of Appeals, then it will be rejected based on lack of jurisdiction of the court.
This is yet another reason why an appeal really needs to be handled by an attorney experienced in these matters – to make sure it’s done right.
Were Your Rights Upheld at Your Revocation Hearing?
A probation revocation hearing, the one which you are presumably wishing to appeal, might be less formal than other court proceedings but that doesn’t mean you don’t have rights at these hearings.
- This means that you receive written notice of your alleged violations and evidence of these violations.
- It also means you are given the opportunity to present evidence and be heard, have the right to cross-examine any witnesses for the prosecution, and have a detached and neutral judge.
- You are also entitled to a written statement from the judge why they found grounds to revoke your probation.
If these rights are violated, then it may be a way to appeal the revocation of your probation. You are entitled at the revocation hearing to full due process.