On July 11, 2016, the defendant pleaded guilty to terroristic threats and was sentenced to three years of probation. On July 17, 2016, the defendant was arrested and charged with aggravated assault, simple assault, and resisting arrest. On August 29, 2016, after a Daisey Kaites VOP hearing, the court ruled that the defendant had committed crimes while on the court’s probation, revoked the probation, and re-sentenced him to two-and-one-half to five years of incarceration. The defendant appealed.

While the appeal of the VOP sentence was pending, a different judge acquitted the defendant of the charges in connection with the incident on July 17, 2016. In light of the acquittal, the defendant argued that the Superior Court should vacate the probation violation and sentence. The Court agreed and held that, because the defendant’s violation of probation was based solely on allegations of new criminal charges for which he was later acquitted, no violation of probation occurred. Consequently, the defendant’s probation revocation sentence was void.

The Court noted, “The instant case exemplifies why, as a practical matter, the appellate courts have cautioned against proceeding with a probation violation hearing before the trial on new charges where, as here, the new charges are the sole basis for the alleged probation violation.”