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Probation and Parole_revocation_not a new punishment--conviction for sex offender registration violation--not double jeopardy
The revocation of parole does not result in a new punishment within the meaning of
double jeopardy. The defendant here was not subjected to double jeopardy where he was
convicted of child sexual abuse charges, was granted early release, had his parole revoked
because he changed his address without notifying his parole officer, and was then convicted of
violating the sex offender registration statute based upon his failure to notify the sheriff within
ten days of his change of address.
Judge TYSON dissenting.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
Richard E. Jester, for defendant-appellee.
The State appeals from the trial court's order granting Adam Edward Sparks, Jr.'s (defendant) motion to dismiss. We reverse.
On 29 November 1999, defendant pled guilty to indecent liberties with a child, crimes against nature, and sexual activity by a substitute parent. Defendant's guilty plea required defendant to register as a sex offender under N.C. Gen. Stat. § 14-208.7.
On 24 February 2003, the North Carolina Department of Corrections granted defendant early release after he had served thirty-nine months. Defendant was placed on intensive supervisionin Catawba County for six months. Defendant registered as a sex offender in Catawba County on 24 February 2003.
On 4 December 2003, defendant's supervising officer, Gary Blalock, completed a post-release supervision violation report alleging defendant: (1) left his residence in Hickory on 27 November 2003 without notifying his probation officer; (2) failed to comply with the sex offender treatment program due to five unexcused absences; and (3) failed to pay $480.00 for his sex offender treatment program.
On 1 July 2004, defendant's early release was revoked because he was not adjusting satisfactorily or [had] violated conditions of [supervision]. The remaining portion of defendant's original sentence was activated on 1 July 2004 pursuant to N.C. Gen. Stat. § 15A-1373. Defendant was incarcerated from 5 June 2004 through his final, unconditional release on 20 December 2004.
While defendant was incarcerated, a grand jury indicted defendant for failure to comply with sex offender registration in violation of N.C. Gen. Stat. § 14-208.11. This August 2004 indictment alleged defendant failed to register with the Sheriff within ten days after a change of address on 13 December 2003. On 24 October 2005, the trial court dismissed the charge, concluding that to prosecute the Defendant for the offense alleged in the above captioned file number would place the Defendant in jeopardy twice for the same behavior. In its order, the trial court found that defendant's actions _ leaving his residence and not making his whereabouts known _ were the grounds not only of the parolerevocation report which led to his return to prison, but also of the August 2004 indictment for failing to register as a sex offender. The State appeals.
The State contends the prohibitions against double jeopardy are inapplicable to the instant facts and that the trial court erred by granting defendant's motion to dismiss. Defendant counters that his indictment under N.C. Gen. Stat. § 14- 208.11(a)(2) violates the double jeopardy provisions of the United States and North Carolina Constitutions because the elements contained in defendant's indictment pursuant to N.C. Gen. Stat. § 14-208.11(a)(2) are also the elements for which defendant's post- release supervision was terminated after a parole hearing. Defendant also asserts that his actions in leaving his residence and in not making his whereabouts known serve as the grounds for both the indictment under N.C. Gen. Stat. § 14-208.11(a)(2) and parole violation report, and that now allowing him to be prosecuted for the indictment would constitute multiple punishments for the same offense in accordance with Blockburger v. U.S., 284 U.S. 299, 76 L. Ed. 306 (1932), and State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). We conclude that the constitutional protections of double jeopardy are inapplicable to parole revocation proceedings, and therefore reverse the order of the trial court.
The Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution prohibit double jeopardy. U.S. Const. amend. V; N.C. Const. art. I, § 19. The Double Jeopardy Clause . . . provides that no person shall 'besubject for the same offence to be twice put in jeopardy of life or limb.' United States v. Dixon, 509 U.S. 688, 695-96, 125 L. Ed. 2d 556, 567 (1993) (quoting U.S. Const. amend. V). Under North Carolina Constitution Article I, section 19, a person cannot be tried twice for the same offense[.] State v. Mansfield, 207 N.C. 233, 236, 176 S.E. 761, 762 (1934); see N.C. Const. art. I, § 19 (No person shall be taken, imprisoned, or disseized . . . but by the law of the land.); see also State v. Urban, 31 N.C. App. 531, 534, 230 S.E.2d 210, 212 (1976) (prohibition against double jeopardy has long been regarded as part of the law of the land in North Carolina).
The United States Supreme Court established the test for double jeopardy as:
[Where] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . . A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
Blockburger, 284 U.S. 304, 76 L. Ed. at 309 (internal quotation marks omitted). The same-elements test, sometimes referred to as the 'Blockburger' test, inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment andsuccessive prosecution. Dixon, 509 U.S. at 696, 125 L. Ed. 2d at 568.
North Carolina has followed the United States Supreme Court's same elements test from Blockburger. See Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (Where, as here, a single criminal transaction constitutes a violation of more than one criminal statute, the test to determine if the elements of the offenses are the same is whether each statute requires proof of a fact which the others do not.); State v. Perry, 305 N.C. 225, 232, 287 S.E.2d 810, 814 (1982) (North Carolina's test follows closely the test employed by the United States Supreme Court to determine whether certain activity constitutes two offenses or only one as set out in Blockburger.). The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Monk, 132 N.C. App. 248, 252, 511 S.E.2d 332, 334 (1999)(citing State v. Ballenger, 123 N.C. App. 179, 180, 472 S.E.2d 572, 572-73 (1996)).
Here, defendant's conditional release was revoked pursuant to N.C. Gen. Stat. § 15A-1373(d) (2005), providing [i]f the parolee violates a condition at any time prior to the expiration or termination of the period, the [Parole] Commission . . . may revoke the parole as provided in G.S. 15A-1376 and reimprison the parolee[.] Defendant was indicted in August 2004 pursuant to N.C. Gen. Stat. § 14-208.9(a) (2005), which states [i]f a person required to register changes address, the person shall providewritten notice of the new address not later than the tenth day after the change to the sheriff of the county with whom the person had last registered. A person required by this Article to register who does any of the following is guilty of a Class F felony . . . (2) Fails to notify the last registering sheriff of a change of address. N.C. Gen. Stat. § 14-208.11(a)(2) (2005).
It is well established in North Carolina that probation revocation hearings are not criminal proceedings and that double jeopardy protections do not apply to probation revocation hearings. In re O'Neal, 160 N.C. App. 409, 413, 585 S.E.2d 478, 481 (2003). The rationale which supports this rule is that revocation of probation is simply a ministerial proceeding which determines whether an individual has violated the conditions of his probation. See Monk, 312 N.C. App. at 252, 511 S.E.2d at 334. Probation revocation is, in other words, an administrative proceeding used to determine whether the probationer has violated the conditions of probation, and a court's determination that probation should be revoked does not constitute a new punishment.
We conclude that parole revocation is so akin to probation revocation as to be functionally indistinguishable for purposes of double jeopardy analysis. Compare N.C. Gen. Stat. § 15A-1345 (2005), with N.C. Gen. Stat. § 15A-1368.6 (2005). In short, revocation of parole does not result in an additional punishment within the meaning of double jeopardy. Accord Jonas v. Wainwright, 779 F.2d 1576, 1577 (11th Cir. 1986) (the double jeopardy clause does not apply to parole revocation proceedings); United States v.Whitney, 649 F.2d 296, 298 (5th Cir. 1981) (declining to extend the double jeopardy clause to parole and probation revocation proceedings because they are not designed to punish a criminal defendant for violation of a criminal law); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (parole revocation does not violate double jeopardy); People v. Sa'ra, 117 P.3d 51, 58 (Colo. Ct. App. 2004) (double jeopardy protections do not apply to parole revocation because it is not a proceeding meant to punish); Burke v. Goodrich, 154 Wis. 2d 347, 353, 453 N.W.2d 497, 500 (1990) (denial of discretionary parole is not punishment because even parole revocation is not deemed punishment for double jeopardy purposes).
Judge BRYANT concurs.
Judge TYSON dissents with a separate opinion..
TYSON, Judge, dissenting.
The State failed to assign error to the trial court's findings
of fact and those findings are binding upon appeal. The trial
court's order should be affirmed. The majority's opinion
erroneously reverses the trial court's order granting defendant's
motion to dismiss. I respectfully dissent.
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