An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 5 October 2004
STATE OF NORTH CAROLINA
v. Chatham County
No. 95 CRS 4591
NICKY MARSH
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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