We’ve all been in court at some point or another advocating for a client to be reinstated to probation when the State is trying to get them revoked in full. Many times these arguments turn on whether it’s our client’s first, second, or fifth time in court for a probation violation, or somewhere in between. As we all know, it’s a big deal whether the probation violation is deemed “technical” or “non-technical,” and how one or more technical violations are “counted up” on a warrant. The Court of Criminal Appeals, using the plain language of TCA 40-35-311, has delivered some much-needed clarity for these situations.
In State v. Seymour, the CCA explained the significance of the legislature’s use of different terms and phrases – “instance of a violation or violations,” technical versus non-technical violations, and first or subsequent “revocations.” The opinion also gives some guidance on how to use the TDOC sanction matrix to distinguish technical violations from “zero tolerance” and non-technical violations. Perhaps most importantly, the opinion explains how to “count up” a probationer’s technical violations before deciding whether they are facing graduated punishment of 15, 30, or 90 days or whether they can be subjected to full revocation for a higher number of technical violations. Notably, the fact that a probationer has received a prior partial revocation for a non-technical violation does not allow the trial judge to fully revoke in a subsequent proceeding involving only technical violations.
Shortly after Seymour, the CCA released its decision in State v. Norrod. The CCA in Norrod ordered immediate reinstatement to probation because the allegations in the warrant amounted to only a “first instance of technical violation or violations.” Importantly, even though the warrant alleged more than one technical violation, the State on appeal conceded, and the appellate court agreed, that the probationer’s actions “constitute[d] a single instance of a technical violation or violations.” The court’s opinion also rejected the State’s attempt to support the trial court’s revocation decision by relying on findings of a non-technical violation that was not alleged in the probation violation warrant.
Both of these recent decisions simply apply the plain language of TCA 40-35-311, but they represent a significant shift in the legal analysis for probation violations that must follow the framework of the statute rather than simply defaulting to the language in the probation violation warrants, the assertions of the probation officers, or the arguments of the prosecutors.