STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 97 CRS 034922
SHAMARIO NATAUN LITTLE
Attorney General Roy Cooper, by Assistant Attorney General
Mary Penny Thompson, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Dean Paul Loven, for defendant-appellant.
EAGLES, Chief Judge.
On 22 January 1998, defendant pled guilty to felony possession
of cocaine pursuant to a plea agreement. Judge Robert P. Johnston
suspended defendant's six to eight month sentence and placed
defendant on supervised probation for a period of two years.
Since being placed on probation, the Mecklenburg County
Superior Court has modified defendant's probation several times.
On 28 April 1998, the Superior Court extended defendant's time to
complete required hours of community service. On 30 September
1998, the Superior Court found that defendant violated several
conditions of his probation and imposed a new requirement ordering
defendant to complete 72 hours of the Structured Day Program. On 28 October 1999 Probation Officer Woodruff signed and dated
a probation violation report. The violation report alleged that
defendant (1) was convicted of possession of drug paraphernalia in
Mecklenburg County Superior Court, (2) made his whereabouts unknown
to his probation officer and failed to report, and (3) tested
positive for marijuana on three occasions. The violation report
was found in the clerk's office files. It was marked as having
been file stamped on 16 November 2000. An order for arrest based
on this violation report was issued.
Based on the 28 October 1999 violation report, a probation
revocation hearing was conducted on 20 November 2000. At that
hearing, defendant moved to dismiss the 28 October 1999 violation
report because the report was file stamped on 16 November 2000, a
date after the probation period expired. Defendant based his
motion on the theory that the report was not timely filed pursuant
to N.C.G.S. § 15A-1344(f). The trial court, without articulating
its reasons, denied defendant's motion. Defendant then admitted
the violations contained in the 28 October 1999 report. The trial
court found that defendant willfully and without lawful excuse
violated terms of probation. Judge Lewis revoked defendant's
probation and activated the six to eight month sentence ordering
that it be served in Mecklenburg County's in-house drug program.
On appeal, defendant contends (1) that the trial court lacked
jurisdiction over the subject matter of the hearing when no
competent evidence was before the court to show that a valid motion
for a hearing was made prior to the expiration of the period ofprobation and (2) that the trial court lacked jurisdiction over the
subject matter of the hearing when no evidence was presented to
show that the probation violation report and motion for hearing was
filed in a timely manner as evidenced by a file stamp.
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. ___, ___, 557 S.E.2d 594, 595 (2001) (internal
quotations omitted) (citations omitted).
North Carolina General Statutes Section 15A-1344(f) 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.
Here, defendant received a two year period of probation that
began on 22 January 1998. Defendant's probation was scheduled to
expire on 22 January 2000. The date written by the probation
officer on the violation report indicates that the officer signed
the report on 28 October 1999. The file stamp on the report,however, indicates that it was not filed with the clerk until 16
November 2000, almost ten months after defendant's probation period
expired. To properly revoke defendant's probation after 22 January
2000, “the State would have had to file a written motion with the
clerk before the expiration of the probation period indicating the
State's intent to conduct a revocation hearing.” Hicks, ___ N.C.
App. at ___, 557 S.E.2d at 596. This did not occur.
In a criminal case, 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). “For a court to retain
jurisdiction over a probationer after the period of probation has
expired, the plain language of N.C.G.S. § 15A-1344(f)(1) requires
the State to '[file] a written motion with the clerk indicating
[the State's] intent to conduct a revocation hearing' before the
period of probation expired.” Hicks, ___ N.C. App. at ___, 557
S.E.2d at 596. Here, the 16 November 2000 file stamp, visible on
the violation report, indicates that the State failed to properly
file defendant's violation report before defendant's probation
period had expired.
Because the State's failure to comply with the plain language
of N.C.G.S. § 15A-1344(f)(1) is dispositive, we decline to address
the additional arguments presented by defendant's counsel and hold
that the probation revocation proceeding should have been
dismissed. Accordingly the trial court's judgment that defendant
violated terms of his probation is arrested and the order
activating defendant's sentence is vacated. Judgment arrested and order vacated.
Judges McCULLOUGH and CAMPBELL concur.
Report per Rule 30(e).
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