STATE OF NORTH CAROLINA
v
.
SHANE SEEK
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for the State.
Matthew Cockman for defendant-appellant.
McGEE, Judge.
Defendant was convicted of taking indecent liberties with a
minor on 13 June 2000, in Superior Court, Harnett County. He was
sentenced to twenty-four months of probation with a special
condition that he not reside in any household with a minor child.
The trial court modified this special condition by adding the words
"other than his own[,]" and also added the additional special
condition: "The defendant may reside with his own child providing
he immediately enroll in and successfully complete an approved
parent[ing] class."
Defendant's probation case was transferred to Cumberland
County where defendant resided. However, the Cumberland County
probation office refused to accept the case because it believed the
special condition of probation was in violation of N.C. Gen. Stat.§ 15A-1343(b2)(4). The case was sent back to Harnett County, where
the Harnett County trial court modified the probation order on 26
June 2000 by striking the words "other than his own[.]" After this
modification, Cumberland County accepted the transfer of the case.
Defendant did not receive written notice of this modification,
although Paul Hatch (Hatch), a Cumberland County probation officer,
testified he told defendant orally of the modification.
Hatch filed a probation violation report stating defendant had
remained overnight in the same residence as defendant's child on
two occasions in September 2000, in violation of the modified
probation order entered 26 June 2000. The court found on 27
November 2000 that defendant wilfully violated his probation and
ordered, as an additional condition of defendant's probation, that
he abide by the conditions of the sex offender control program.
Defendant appeals from this order.
Defendant first argues the court erred in not finding the ex
parte probation modification entered on 26 June 2000 to be invalid.
Defendant contends he did not receive adequate notice of the
modification because he never received written notice. We agree.
N.C. Gen. Stat. § 15A-1343(c) (1999) states:
Statement of Conditions. -- A defendant
released on supervised probation must be given
a written statement explicitly setting forth
the conditions on which he is being released.
If any modification of the terms of that
probation is subsequently made, he must be
given a written statement setting forth the
modifications.
Defendant did not receive any written notification. The "provision
requiring written notice of any modifications made in the terms ofprobation is mandatory, and we have no authority to rule
otherwise." State v. Suggs, 92 N.C. App. 112, 113, 373 S.E.2d 687,
688 (1988). Hatch did orally inform defendant of the modification;
however, oral notice is not "a satisfactory substitute for the
written statement that the statute requires[.]" Id.
The State argues the lack of written notice is moot because
the original order's condition of probation required defendant to
complete a parenting class before he could stay in a residence with
his own child. The State argues that if the modified order was
invalid, the original order was valid, and defendant violated those
conditions by not completing the parenting class. However, the
allegations against defendant and the evidence presented at trial
do not mention defendant either completing or failing to complete
any parenting class. Therefore, we reverse defendant's probation
violation conviction. As we reverse defendant's conviction, we
need not reach the constitutional issues defendant raises in his
final assignment of error.
Reversed.
Judges EAGLES and TYSON concur.
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