An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-713


Filed: 18 February 2003


         v.                        Durham County
                                No. 97CRS12044-45

    Appeal by defendant from judgment entered 18 March 2002 by Judge Ronald L. Stephens in Durham County Superior Court. Heard in the Court of Appeals 20 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.    

    Joseph E. Zeszotarski, Jr. for defendant-appellant.

    TYSON, Judge.

I. Background

    Reginald Carter (“defendant”) pled guilty in superior court to breaking or entering, and assault with a deadly weapon inflicting serious injury on 19 November 1997. The court suspended defendant's active term of imprisonment, and placed him on supervised probation for twenty-four months. Subsequently, defendant's probation officer filed a probation violation report alleging that defendant had violated certain terms of his probation. Though the violation report was signed by the probation officer on 8 September 1998, no file stamp evidences the date the report was filed in the superior court. An order for arrest wasissued based upon this probation report, and was served on defendant on 27 November 2001. Like the violation report, the order of arrest lacked a file stamp indicating the date it was filed in the superior court.
    A probation revocation hearing was held in this matter on 18 March 2002. Defendant, through counsel, admitted that he violated those terms and conditions of probation alleged in the violation report. He admitted to absconding from approximately September 1998 until he was located and arrested in November 2001, but proffered evidence that he had been “involved in some productive activities” during that period. After hearing the evidence and the arguments of counsel, the court found that defendant had willfully and without lawful excuse violated the terms of probation, as set forth in the probation violation report. The court, therefore, revoked defendant's probation and activated his suspended sentence. Defendant appeals.
II. Issue

    By his sole assignment of error on appeal, defendant argues that the trial court erred in revoking his probation.
III. Jurisdiction

    Specifically, defendant contends that the court was without jurisdiction to revoke his probation, as there was no evidence that he was served with the probation violation report or order of arrest prior to the expiration of his probation on 11 November 1999. The State concedes that the record is devoid of evidence of timely filing of the probation violation report as required byN.C.G.S. § 15A-1344(f)(1), and acknowledges that under this Court's recent holding in State v. Moore, 148 N.C. App. 568, 559 S.E.2d 565 (2002), the court was without jurisdiction to enter its judgment revoking defendant's probation.
IV. Conclusion

    After a thorough review of the record, we hold that the facts of Moore and the instant case are indistinguishable. Accordingly, the trial court's judgment is vacated for want of jurisdiction. See Moore, 148 N.C. App. at 570, 559 S.E.2d at 566.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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