Criminal Practice — Probation Revocation – Mismatched Oral & Written Findings

The transcript shows that the trial court checked the wrong boxes on the judgments revoking defendant’s probation. Since the judgments do not allow us to determine whether the trial court would have revoked defendant’s probation on any appropriate grounds, we must vacate the judgments and remand.

The trial court marked boxes on the form judgments indicating defendant had waived his hearing and admitted to all eight of the violations in the violation report. The trial court did not mark the box indicating each of those violations alone would support revoking defendant’s probation. Moreover, the trial court marked the boxes making separate findings that revocation was appropriate because defendant committed a new crime or absconded, and the box indicating defendant had served two prior Confinement in Response to Violation (CRV) terms.

As evidenced by the transcript itself, however, defendant did not waive his revocation hearing. Defendant expressly denied all eight of the allegations, and the trial court stated it would only find that defendant had violated the eighth violation—not complying with his Security Risk Group (SRG) Agreement. Nothing in the record indicates the trial court ordered a second CRV term in case number 17 CRS 86913. Therefore, the judgments do not provide this court with aa basis to determine whether the trial court would have decided to revoke defendant’s probation on any appropriate grounds.

We note that the SRG Agreement was an express condition of defendant’s probation only in case number 18 CRS 338. Therefore, the trial court could not have properly found that defendant violated the SRG Agreement in case number 17 CRS 86913.

Moreover, even assuming the trial court did not err in finding that defendant violated a valid condition by not complying with the SRG Agreement, in order to revoke probation, the trial court would have also had to find that defendant committed a new crime, absconded, or served two prior terms of CRV in this matter. Because the record does not indicate that defendant served two prior CRV periods in 17 CRS 86913, this would not be a proper basis for revoking his probation in that case.

Vacated and remanded.

State v. Whatley (Lawyers Weekly No. 011-259-21, 11 pp.) (Toby Hampson, J.) Appealed from Buncombe County Superior Court (Steve Warren, J.) Amar Majmundar and Grace Linthicum for the state; Kerri Sigler for defendant. 2021-NCCOA-702