State v. Clemmons

Court of Appeals of North Carolina

State v. Clemmons

389 S.E.2d 135, 97 N.C. App. 502, 1990 N.C. App. LEXIS 157

CourtCourt of Appeals of North Carolina

DecidedMarch 6, 1990

DocketNo. 8922SC892

StatusPublished

This text of 389 S.E.2d 135 (State v. Clemmons) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Clemmons, 389 S.E.2d 135, 97 N.C. App. 502, 1990 N.C. App. LEXIS 157 (N.C. Ct. App. 1990).

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Opinions

LEWIS, Judge. ,

Defendant assigns as error the fact that the trial court failed to hold a preliminary hearing on defendant’s violation of probation pursuant to G.S. § 15A-1345(c). This statute requires a preliminary hearing within seven working days of an arrest of a probationer unless the probationer waives his right to a hearing. Defendant did not waive his right to a preliminary hearing, and asserts that [504]*504the trial court’s failure to conduct a preliminary hearing violated the statute and his right to due process of law.

Defendant was arrested out-of-state on Thursday, 18 May 1989; his revocation hearing was set for Monday, 5 June 1989. Defendant was held for a period of eleven working days (Monday, 29 May being a holiday) without a preliminary hearing. Although we find that the Court failed to comply with the provisions of G.S. § 15A-1345(c), we hold that the defendant was not prejudiced by the lack of a preliminary hearing. The defendant was arrested in Virginia. This is prima facie evidence of a parole violation. He does not deny that he violated the conditions of his parole. There was no need for a preliminary hearing to determine whether there was probable cause to believe he had violated a condition of his probation.

Defendant received a fair hearing, free of prejudicial error.

No error.

Judges Wells and Cozort concur.

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LEWIS, Judge. ,

Defendant assigns as error the fact that the trial court failed to hold a preliminary hearing on defendant’s violation of probation pursuant to G.S. § 15A-1345(c). This statute requires a preliminary hearing within seven working days of an arrest of a probationer unless the probationer waives his right to a hearing. Defendant did not waive his right to a preliminary hearing, and asserts that [504]*504the trial court’s failure to conduct a preliminary hearing violated the statute and his right to due process of law.

Defendant was arrested out-of-state on Thursday, 18 May 1989; his revocation hearing was set for Monday, 5 June 1989. Defendant was held for a period of eleven working days (Monday, 29 May being a holiday) without a preliminary hearing. Although we find that the Court failed to comply with the provisions of G.S. § 15A-1345(c), we hold that the defendant was not prejudiced by the lack of a preliminary hearing. The defendant was arrested in Virginia. This is prima facie evidence of a parole violation. He does not deny that he violated the conditions of his parole. There was no need for a preliminary hearing to determine whether there was probable cause to believe he had violated a condition of his probation.

Defendant received a fair hearing, free of prejudicial error.

No error.

Judges Wells and Cozort concur.

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Bluebook (online)

389 S.E.2d 135, 97 N.C. App. 502, 1990 N.C. App. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clemmons-ncctapp-1990.