An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-410


Filed: 5 October 2004


    v.                        Chatham County
                            No. 95 CRS 4591

    Appeal by defendant from judgment entered 3 November 2003 by Judge Ronald Stephens in Chatham County Superior Court. Heard in the Court of Appeals 4 October 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Scott T. Stroud, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

    TYSON, Judge.

    Nicky Marsh (“defendant”) appeals from the judgment revoking his probation and activating his suspended sentence. We vacate the judgment and remand to the trial court.

I. Background
    On 16 February 1996, defendant pled guilty to the sale of cocaine. The trial court sentenced defendant to six to eight months imprisonment, suspended the sentence, and placed defendant on thirty months probation. The trial court modified the original judgment on 2 March 1998 by increasing the monetary conditions of defendant's probation and by extending defendant's term of probation from 16 August 1998 to 16 February 1999. Subsequently, defendant's probation officer filed a probation violation reportand addendum alleging that defendant had violated certain terms of his probation. The report and addendum were notarized, but were not endorsed with a filed stamp. An order for defendant's arrest was entered 21 January 1999 and return of service on the order for arrest was made on 10 October 1999.
    At the beginning of the probation revocation hearing held on 3 November 2003, defendant moved to dismiss based on lack of jurisdiction. The trial court denied the motion and defendant subsequently stipulated to violating the specified conditions of probation. The trial court found that defendant willfully violated the terms of his probation and activated defendant's sentenced of six to eight months imprisonment. Defendant appeals.
II. Issue
    Defendant contends the trial court was without jurisdiction to revoke his probation because no evidence shows the probation violation reports were timely filed prior to the expiration of his probation on 16 February 1999.
III. Jurisdiction
    The State concedes that the record is devoid of evidence of timely filing of the probation violation report as required by N.C. Gen. Stat. § 15A-1344(f)(1). The State acknowledges that under this Court's recent holding in State v. Moore, 148 N.C. App. 568, 571, 559 S.E.2d 565, 567 (2002) (“We hold that the State failed to satisfy the plain language of N.C. Gen. Stat. § 15A-1344(f)(1) and that the trial court was without jurisdiction to conduct a hearing”.), the trial court was without jurisdiction to enter itsjudgment revoking defendant's probation.
IV. Conclusion
    No evidence shows that the probation reports were timely filed pursuant to N.C. Gen. Stat. § 15A-1344(f)(1). The trial court was without jurisdiction and its judgment that found defendant violated terms of his probation and activated his suspended sentence is vacated. This cause is remanded to the trial court for any further proceedings not inconsistent with this opinion.
    Vacated and Remanded.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

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