STATE OF NORTH CAROLINA
v
.
Buncombe County
Nos. 91 CRS 3669;
WILLIAM LENOIR 91 CRS 14539-40
Attorney General Roy Cooper, by Assistant Attorney General
June S. Ferrell, for the State.
Assistant Public Defender M. LeAnn Melton, for the defendant-
appellant.
WYNN, Judge.
Defendant appeals from the trial court's 1 February 2001 entry
of judgment and commitment upon revocation of his probation. We
find no merit in his appeal.
On 11 July 1994, defendant pled guilty to felonious incest,
felonious failure to appear, taking indecent liberties with a minor
and misdemeanor breaking or entering. The trial court sentenced
him to a thirteen-year imprisonment term on the incest charge, a
ten-year suspended sentence on the remaining consolidated offenses,
and a five-year period of supervised probation. Although the
transcript of the hearing indicated that the trial judge ordered
the period of probation to commence at the expiration of the active
imprisonment term, the trial judge failed to note on the judgmentwhen the period of probation would begin. However, the special
conditions of probation required defendant to report to probation
within thirty-six hours of his release from the Department of
Corrections.
In September 2000, defendant's probation officer reported that
defendant had violated his probation by testing positive for
cocaine on 1 September 2000. On 11 November 2000, the State moved
to modify the 11 July 1994 judgment to reflect that defendant's
probationary sentence ran consecutively to the active sentence
imposed on the incest charge. However, defendant moved to dismiss
the probation violation, contending that his five-year probation
period had run concurrently with his active sentence, and had
expired on 11 July 1999. After a hearing on the motions, Judge
Ronald K. Payne entered a corrected judgment dated 11 December
2000 indicating that defendant's probation began when he was
paroled or otherwise released from incarceration on the incest
charge. Defendant did not appeal from that corrected judgment.
On 1 February 2001, defendant again moved to dismiss the
probation violation; that motion, as well as the 14 November 2000
motion to dismiss, was denied by the trial court. Thereafter, upon
conducting a probation violation hearing, the trial court revoked
defendant's probation and activated his suspended sentence. From
that judgment, the defendant appealed to this court.
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Preliminarily, it should be noted that defendant petitioned
this Court on 12 June 2001 for a writ of certiorari, contendingthat Judge Payne's 11 December 2000 order erroneously modified the
11 July 1994 suspended sentence judgment. This Court denied
defendant's petition for writ of certiorari.
In light of this Court's denial of his petition to review the
judgment of 11 December 2000, we find no merit in defendant's first
assignment of error because it is premised on his unsuccessful
desire to challenge the 11 December 2000 order. We have further
examined defendant's remaining assignments of error which likewise
contend that defendant's probationary period ended in 1999 and find
them to be wholly without merit.
Affirmed.
Judges McCULLOUGH and BIGGS concur.
Report per Rule 30(e).
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