STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 95 CRS 52610
WILLIAM ANTOINE ANDERSON
Attorney General Roy A. Cooper, by Assistant Attorney General
Richard J. Votta, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Dean Paul Loven, for defendant-appellant.
EAGLES, Chief Judge.
On 31 July 1996, defendant William Antoine Anderson was tried
in Mecklenburg County Superior Court and found guilty by a jury of
sale and delivery of cocaine. The Honorable Chase B. Saunders
imposed and suspended a six to eight month term of imprisonment and
placed defendant on probation for three years.
On 27 May 1999, Probation Officer Pamela C. Axsom (Officer
Axsom) signed and dated a probation violation report alleging that
defendant failed to pay two hundred and twenty dollars in probation
supervision fees and that defendant had absconded from probation.
A copy of the probation violation report was found in the clerk's
office files at the time of the violation hearing but it is notindorsed with a file stamp. Defendant's three year period of
probation expired on 31 July 1999.
At a probation revocation hearing on 28 August 2000, defendant
admitted to violating the specified conditions of probation. The
Honorable Richard D. Boner found that the alleged violations were
true and willful. Judge Boner revoked defendant's probation and
activated the six to eight month suspended sentence. On appeal,
defendant contends that the trial court lacked jurisdiction over
the subject matter of the hearing.
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).”
Hicks, ___ 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 timely
filing 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 Axsom signed and dated the violation report on
27 May 1999, 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 the
State 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 his probation is arrested and the order
activating defendant's six to eight month suspended sentence 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.
Report per Rule 30(e).
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