Juveniles--probation violation hearing--assault--motion to dismiss--double jeopardy
The trial court did not violate a juvenile's double jeopardy rights by denying his motion
to dismiss the assault charge even though the juvenile had previously admitted to the same
offense at the juvenile's probation violation hearing, because: (1) double jeopardy protections do
not apply to probation revocation hearings when a probation violation hearing is not a criminal
prosecution; (2) the imposition of a new term of probation or possibly confinement in juvenile
cases is punishment for the original offense for which the juvenile was adjudicated delinquent
and not for any of the offenses that form the basis of the trial court's determination that a
probation violation has occurred; and (3) the juvenile was not punished twice for the same
offense.
Attorney General Roy Cooper, by Barbara A. Shaw, Assistant
Attorney General, for the State.
Peter Wood for respondent-appellant.
McGEE, Judge.
Chadwick O'Neal (the juvenile) was adjudicated a delinquent
juvenile on 30 January 2001 for the commission of the offenses of
misdemeanor assault with a deadly weapon and misdemeanor assault on
a government official in violation of N.C. Gen. Stat. § 14-33(c).
The juvenile was placed on probation for one year subject to
conditions imposed by the trial court on 2 February 2001.
A juvenile court counselor filed a motion for review for
violation of the conditions of probation by the juvenile on 20
September 2001, alleging that:
1. On or about 2-28-01, the juvenile wasremoved from his placement . . . .
2. On or about 2-28-01, the juvenile was
removed from his placement due to him
being disrespectful to authority figures
and fighting with a low functioning
resident.
3. Being removed from the Ft. Bragg
Leadership camp for refusing to follow
instructions and disruptive behavior.
4. On or about 8-29-01, the juvenile became
physically aggressive with his sister.
5. On or about 8-31-01, the juvenile was
placed in school detention for refusing
to follow instructions in school and
disrupting the class.
6. On or about 9-6-01, the juvenile did not
have his study log available for the
court counselor after being given prior
notice on 8-31-01.
7. On or about 9-6-01, after the court
counselor left school the juvenile went
to class and again disrupted class by
refusing to follow directions and calling
the teacher names.
8. On or about 9-8-01, the juvenile became
physically aggressive with his sister.
9. On or about 9-8-01, the juvenile went
behind his mother's back and played his
video game after he was already
instructed not to.
10. On or about 9-13-01, the juvenile became
physically aggressive with another
juvenile and the police were called.
Following a hearing on 23 October 2001, the trial court
entered an order finding that the juvenile admitted the allegations
in the motion, except the allegations that he was physically
aggressive with his sister. The trial court concluded as a matter
of law that the juvenile willfully violated the terms of his
probation and ordered that the disposition hearing be continued so
that the juvenile could attend and successfully complete a training
program. At the disposition hearing on 28 February 2002, the trial
court entered an order placing the juvenile on a new Level II
Juvenile Probation for a period of one year. A juvenile petition for misdemeanor assault was filed against
the juvenile on 19 February 2002, alleging that the juvenile
committed a delinquent act of assaulting a person under the age of
twelve by choking him with his hands, on 11 September 2001. The
misdemeanor assault petition was heard on 26 March 2002. The
juvenile moved to dismiss the charge based on double jeopardy,
which was denied by the trial court. The trial court took judicial
notice of the fact that the 11 September 2001 offense alleged in
the petition for misdemeanor assault and the 13 September 2001
aggressive behavior with another juvenile, allegation number 10 in
the motion for review for probation violation, were the same
incident.
After hearing evidence, the trial court entered a juvenile
adjudication order finding that the State had proven the
allegations in the petition for misdemeanor simple assault beyond
a reasonable doubt and finding the juvenile guilty of simple
assault. In a disposition order entered the same day, the trial
court ordered that the juvenile continue at his current probation
Level II. The juvenile appeals from this order.
The juvenile's sole assignment of error is that the trial
court erred in denying his motion to dismiss the assault charge
when the juvenile had previously admitted to the same offense at
the juvenile's probation violation hearing. The juvenile argues
the trial court's denial of his motion to dismiss was in violation
of the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution. The Double Jeopardy Clause
protects against three distinct abuses: a
second prosecution for the same offense afteracquittal, a second prosecution for the same
offense after conviction, and multiple
punishments for the same offense.
State v. Thompson, 349 N.C. 483, 495, 508 S.E.2d 277, 284 (1998).
"The protection of the Double Jeopardy Clause applies to
juvenile proceedings and attaches when the judge, as trier of fact,
begins to hear evidence." In re Phillips, 128 N.C. App. 732, 734,
497 S.E.2d 292, 293, disc. review denied, 348 N.C. 283, 501 S.E.2d
919 (1998) (citing Breed v. Jones, 421 U.S. 519, 531, 44 L. Ed. 2d
346, 356-357 (1975)). However, the Supreme Court in Breed only
extended double jeopardy protection to adjudicatory or delinquency
hearings. Breed, 421 U.S. at 529-31, 44 L. Ed. 2d at 355-56; see
also Barker v. Estelle, 913 F.2d 1433, 1437 (9th Cir. 1990), cert.
denied, 500 U.S. 935, 114 L. Ed. 2d 465 (1991) (noting that as long
as the risk of adjudication of the alleged offenses is not present
in the juvenile hearing, jeopardy does not attach). The Supreme
Court noted in Breed, a case dealing with double jeopardy in the
transfer of a juvenile from juvenile court to be tried as an adult,
that nothing in its holding prevented "States from requiring, as a
prerequisite to the transfer of a juvenile, substantial evidence
that he committed the offense charged, so long as the showing
required is not made in an adjudicatory proceeding." Breed, 421
U.S. at 538 n.18, 44 L. Ed. 2d at 360 n.18.
We apply the same reasoning to probation revocation
proceedings for juveniles. This Court has long held that "[a]
probation violation hearing is not a criminal prosecution." State
v. Monk, 132 N.C. App. 248, 252, 511 S.E.2d 332, 334, appeal
dismissed and disc. review denied, 350 N.C. 845, 539 S.E.2d 1(1999) (citing State v. Pratt, 21 N.C. App. 538, 204 S.E.2d 906
(1974)). In a probation violation hearing, "all that is required
is that there be competent evidence reasonably sufficient to
satisfy the judge in the exercise of a sound judicial discretion
that the defendant had, without lawful excuse, willfully violated
a valid condition of probation." Pratt, 21 N.C. App. 538, 540, 204
S.E.2d 906, 907 (1974). In a juvenile probation violation hearing,
the trial court must only find by a preponderance of the evidence
that a juvenile has violated the conditions of his probation under
N.C. Gen. Stat. § 7B-2510(e) (2001). It is well established that
double jeopardy protections do not apply to probation revocation
hearings. United States v. Woods, 127 F.3d 990, 992-93 (11th Cir.
1997); United States v. Woodrup, 86 F.3d 359, 363 (4th Cir.), cert.
denied, 519 U.S. 944, 136 L. Ed. 2d 245 (1996); Knight v. United
States, 73 F.3d 117, 123 (7th Cir. 1995), cert. denied, 519 U.S.
827, 136 L. Ed. 2d 46 (1996); United States v. Whitney, 649 F.2d
296, 298 (5th Cir. 1981).
The juvenile focuses on the punishments that he could be
subject to for violation of his probation. However, as discussed
in Monk, "'[a]lthough revocation of probation results in the
deprivation of a probationer's liberty, the sentence he may be
required to serve is the punishment for the crime of which he had
previously been found guilty.'" Monk, 132 N.C. App. at 253, 511
S.E.2d at 335 (emphasis in original) (quoting State v. Young, 21
N.C. App. 316, 320, 204 S.E.2d 185, 187 (1974)). We acknowledge
that in adult criminal cases a violation of probation usually
results in the activation of a previously imposed sentence, whilein juvenile cases a probation violation usually results in a new
imposition of probation or even confinement, since there is
generally no suspended term of confinement in juvenile cases
imposing probation. Compare Young, 21 N.C. App. at 320, 204 S.E.2d
at 187, with In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395
(2003). Even with the differences between the juvenile system and
the criminal justice system, see State v. Tucker, 154 N.C. App.
653, 657-59, 573 S.E.2d 197, 200-01 (2002), disc. review denied,
356 N.C. 691, 578 S.E.2d 597 (2003), the better view is to treat a
juvenile probation violation as analogous to the revocation of
probation in the criminal justice system, in that this imposition
of a new term of probation, or possibly confinement, in juvenile
cases is punishment for the original offense for which the juvenile
was adjudicated delinquent, not for any of the offenses that form
the basis of the trial court's determination that a probation
violation has occurred. See Monk, 132 N.C. App. at 253, 511 S.E.2d
at 335; Young, 21 N.C. App. at 320, 204 S.E.2d at 187.
In the probation violation hearing in the present case, the
trial court only found by a preponderance of the evidence that the
juvenile had violated the conditions of his probation. This
determination was not made in an adjudicatory hearing, and the
extension of double jeopardy protection to juvenile adjudications
as discussed in Breed does not apply here. Further, as discussed
above the juvenile was not punished twice for the same offense.
Therefore, jeopardy did not attach at the 23 October 2001 probation
violation hearing so as to preclude the later hearing adjudicating
the juvenile delinquent for simple assault. Affirmed.
Judges McCULLOUGH and LEVINSON concur.
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