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Defendant Had Actual Notice of Hearing

Deborah Elkins//May 12, 2015

Defendant Had Actual Notice of Hearing

Deborah Elkins//May 12, 2015

The Court of Appeals doesn’t necessarily condone a probation officer’s one-day notice by telephone that defendant needed to attend a hearing about a possible extension of his probationary period, as he had actual notice of the hearing, and the appeals court upholds the trial court’s order revoking the balance of his suspended sentence for DUI, third or subsequent offense, after his additional criminal charges.

Defendant challenges the validity of the notice given to him before the July 31, 2013, hearing to consider extending his probation due to his recent arrest for three felony offenses and one misdemeanor. His probation officer testified that she called defendant on July 30 and informed him a hearing was set for the next day and that he needed to be present for the hearing on a possible probation extension. According to the probation officer, he told her he could not attend because he had to work.

The trial court found that defendant had notice of the proceeding. We do not condone the probation officer’s decision to notify defendant verbally, one day before the hearing, that he needed to appear before the court; however defendant did receive actual notice. Therefore, the defect in notice did not render the court’s Aug. 28, 2012, order void. Any defect in notice merely rendered the order voidable. Under Rule 1:1, that order became final within 21 days. Defendant took no steps, either at trial or on appeal, to challenge this order. It became final and defendant’s collateral attack is untimely

Further, the trial court had subject matter jurisdiction to review defendant’s probation.

Figueroa v. Commonwealth (McCullough) No. 0149-14-3, April 7, 2015; Rockingham County Cir.Ct. (Albertson) J. Ryan King for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 015-7-108(UP), 6 pp.


VLW 015-7-108

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