IN THE MATTER OF:
B.P., Durham County
a Juvenile No. 99 J 134
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
UNC Law School Clinical Programs, by Joseph E. Kennedy, for
respondent-juvenile.
WALKER, Judge.
The juvenile was initially adjudicated delinquent on 14
September 1999 for assault and was placed on probation for a period
of one year. On 6 September 2000, the juvenile's court counsel
discovered that she had stopped attending school regularly. As a
result, on 13 September 2000, the counselor filed a motion for
review based on his concerns that the juvenile was having problems
at school. A scheduled hearing was continued until 17 October
2000, at which time the juvenile moved to dismiss on grounds that
pursuant to N.C. Gen. Stat. § 7B-2510(c), the juvenile court lacked
the authority to extend her probation.
The juvenile court denied this motion and, after receiving
evidence, entered an order extending the juvenile's probation forthree months.
In her appeal, the juvenile argues the juvenile court erred in
denying her motion to dismiss. She maintains that, in accordance
with N.C. Gen. Stat. § 7B-2510(c), an extension of probation may
not be ordered after the original probation has expired.
Our Court recently addressed this identical issue and has held
that where a motion for review has been filed prior to the
expiration of a juvenile's probation, a juvenile court has the
“limited discretion . . . to modify probation within a reasonable
time after its expiration.” In re T.J., ___ N.C. App. ___, ____,
553 S.E.2d 418, 419 (COA No. 00-835, filed 16 October 2001). “The
determination of what amount of time is reasonable should be made
in light of the time necessary to schedule a hearing on a
juvenile's probation and the time needed by the juvenile and the
State to prepare for such a hearing.” Id.
Here, our review of the record reveals that a motion for
review was filed before the expiration of the juvenile's probation
and that a 19 September 2000 hearing was continued until 17 October
2000. As in T.J., we conclude the juvenile court's modification of
the juvenile's probation was made within a reasonable time after
its expiration. Therefore, the order of the juvenile court is
Affirmed.
Judge McGEE concurs.
Judge BIGGS concurs in the result with a separate opinion.
Report per Rule 30(e).
IN THE MATTER OF:
Durham County
B.P., No. 99 J 134
a Juvenile.
BIGGS, Judge concurring in the result with separate opinion.
It is well settled that “[w]here a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been is overturned by a higher court.” In the Matter
of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989). Thus I am bound by this Court's decision in In Re T.J., --
N.C. --, 553 S.E.2d 418 (2001) to concur in this opinion.
N.C.G.S. § 7B-2510(c) (1999) specifically provides:
An order of probation shall remain
in force for a period not to exceed
one year from the date entered.
Prior to expiration of an order of
probation, the court may extend it
for an additional period of one year
after a hearing, if the court finds
that the extension is necessary to
protect the community or to
safeguard the welfare of the
juvenile.
“'When the language of a statute is clear and unambiguous, there is
no room for judicial construction.'” Occaneechi Band v. N.C.
Commission of Indian Affairs, -- N.C. App. --, -- S.E.2d -- (filed
21 August 2001) (quoting State v. Green, 348 N.C. 588, 596, 502S.E.2d 819, 824 (1998)). I believe that only the legislature can
cure what the majority has attempted through judicial construction.
However, for the reason outlined above, I must concur.
*** Converted from WordPerfect ***