Criminal Practice – Probation – Special Conditions – Absconding & Bail

As a special condition of probation, the trial court required defendant to be considered an absconder if he has no contact with his probation officer or leaves the jurisdiction for 14 days. “Not absconding” is one of the regular conditions of probation. G.S. § 15A-1343(b)(3a). A defendant only absconds under § 1344(b)(3a) if he willfully avoids supervision or willfully makes his whereabouts unknown to the supervising probation officer. Further, absconding is one of the three conditions under which a trial court may revoke probation. Thus, the special condition imposed by the trial court is contrary to our statutes and case law.

We vacate the special conditions of probation imposed by the trial court. Remanded for resentencing.

Defendant also challenges the special condition that, if defendant is found to be in violation of any of the conditions of probation, he is to be immediately arrested and held under recommendation without bond. As both parties note, such a condition would require defendant to be arrested and held without bond for any probation violation, including those for which revocation of probation is not statutorily permissible. Allowing this special condition of probation would render portions of G.S. §§ 15A-1343(b)(1), -1343(b)(3a) and -1344(d2) superfluous. Thus, this special condition is also invalid.

State v. Mizell (Lawyers Weekly No. 012-145-23, 9 pp.) (Toby Hampson, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Zachary Dunn for the state; Kathryn VandenBerg for defendant. North Carolina Court of Appeals (unpublished)