STATE OF NORTH CAROLINA
v
.
RUBY MICHELLE MOORE
Attorney General Roy A. Cooper, by Assistant Attorney General
Amar Majmundar, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Dean Paul Loven, for defendant-appellant.
EAGLES, Chief Judge.
On 3 June 1994, defendant Ruby Michelle Moore pled guilty to
breaking and entering in violation of N.C.G.S. § 14-54 and larceny
in violation of N.C.G.S. § 14-72. The same day, the Honorable
Shirley L. Fulton imposed and suspended a six year term of
imprisonment and placed defendant on supervised probation for five
years.
On 3 November 1995, Probation Officer Pamela W. Gilchrist
(Officer Gilchrist) signed and dated a probation violation report
alleging that defendant failed to complete a drug treatment
program, that she missed scheduled office appointments on two
occasions, and that she had absconded from supervision. The
probation violation report was found in the clerk's office files
but it is not indorsed with a file stamp. An order for defendant'sarrest was entered 6 August 1996. Return of service on the order
for arrest was made on 9 May 2000. The five-year period of
probation specified in the judgment expired on 3 June 1999.
At a probation revocation hearing on 6 July 2000, defendant
stipulated to violating the specified conditions of probation. The
Honorable Richard Boner found that the alleged violations were true
and willful. Judge Boner ordered that defendant continue on
probation and serve a split sentence of 120 days incarceration.
Defendant appeals.
On appeal, defendant contends that the trial court (1) lacked
jurisdiction over the subject matter of the hearing and (2) that
the trial court erred by failing to dismiss the violation report
because the official policy of the Department of Community
Corrections as stated in the Division of Community Corrections
Policy Manual is to have such cases transferred to unsupervised
probation and reviewed for termination.
In State v. Hicks, this Court wrote:
A court's jurisdiction to review a
probationer's compliance with the terms of his
probation is limited by statute. . . . “When
a sentence has been suspended and defendant
placed on probation on certain named
conditions, the court may, at any time during
the period of probation, require defendant to
appear before it, inquire into alleged
violations of the conditions, and, if found to
be true, place the suspended sentence into
effect. But the State may not do so after the
expiration of the period of probation except
as provided in G.S. 15A-1344(f).”
___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (Dec. 28, 2001) (No.
COA01-256) (quoting State v. Camp, 299 N.C. 524, 527, 263 S.E.2d
592, 594 (1980) (citations omitted)).
Section 15A-1344(f) of the North Carolina General Statutes
provides that once the period of probation has ended, the court may
revoke probation only if:
(1) Before the expiration of the period of
probation the State has filed a written motion
with the clerk indicating its intent to
conduct a revocation hearing; and
(2) The court finds that the State has made
reasonable effort to notify the probationer
and to conduct the hearing earlier.
Hicks, ___ N.C. App. at ___, ___ S.E.2d at ___.
Here, defendant argues that the State lacked jurisdiction to
revoke defendant's probation because the probationary period had
expired and the violation report was not file stamped, and
therefore not properly filed in accordance with N.C.G.S. § 15A-
1344(f)(1). In the civil matter of Bailey v. Davis, 231 N.C. 86,
89, 55 S.E.2d 919, 921 (1949), our Supreme Court stated that “a
paper writing is deemed to be filed within the meaning of the law
when it is delivered for that purpose to the proper officer and
received by him, and it is not necessary to the filing of a paper
that it shall be indorsed as having been so filed.” In a criminal
case, however, North Carolina requires the State to prove
jurisdiction beyond a reasonable doubt. State v. Petersilie, 334
N.C. 169, 175, 432 S.E.2d 832, 835 (1993). In the absence of a
file stamped motion or any other evidence of the motion's timelyfiling as required by N.C.G.S. § 15A-1344(f)(1) the trial court is
without jurisdiction. On appeal, “[w]hen the record shows a lack
of jurisdiction in the lower court, the appropriate action on the
part of the appellate court is to arrest judgment or vacate any
order entered without authority.” Id. at 175, 432 S.E.2d at 836
(quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711
(1981)).
Though Officer Gilchrist signed and dated the violation report
on 3 November 1995, the record fails to provide evidence of the
report having been filed prior to the expiration of defendant's
period of probation. For a trial court to retain jurisdiction over
a probationer after the probation period has expired, the plain
language of N.C.G.S. § 15A-1344(f)(1) requires the State to file,
before the expiration of the period of probation, a written motion
with the clerk indicating the State's intent to conduct a
revocation hearing. Hicks, ___ N.C. App. at ___, ___ S.E.2d at
___. The burden of perfecting the trial court's jurisdiction for
a probation revocation hearing after defendant's period of
probation has expired lies squarely with the State. See N.C.G.S.
§ 15A-1344(f) (1999); see also Petersilie, 334 N.C. at 175, 432
S.E.2d at 835.
Here, the violation report was not file stamped and the record
is without sufficient evidence to support the State's contention
that defendant's violation report was filed before defendant's
period of probation had expired. Consequently, we hold that theState failed to satisfy the plain language of N.C.G.S. § 15A-
1344(f) and that the trial court was without jurisdiction to
conduct a hearing. See Hicks, ___ N.C. App. ___, ___ S.E.2d ___.
In light of this conclusion, other arguments on appeal need not be
reached. Accordingly, the trial court's judgment that defendant
violated terms of her probation is arrested and the order modifying
the terms of her probation is vacated. See Petersilie, 334 N.C. at
175, 432 S.E.2d at 835.
Judgment arrested and order vacated.
Judges MARTIN and BIGGS concur.
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