STATE OF NORTH CAROLINA
v. Guilford County
No. 97CRS20759
MALECKIA QUESHAYE McNEIL
Attorney General Roy Cooper, by Assistant Attorney General
June S. Ferrell, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
MARTIN, Chief Judge.
Defendant pled guilty to one count of larceny by an employee
on 18 May 1998. The trial court entered judgment suspending
defendant's 6-8 month term of imprisonment, and placed her on
supervised special probation for 36 months.
As shown by the documents submitted by the State and included
as exhibits to the record on appeal, a citation was issued to
defendant on 8 September 1999, charging her with simple assault.
When defendant failed to appear on 15 October 1999 on that charge,
an order for her arrest was issued on 2 December 1999. On 8
February 2000, defendant's probation officer issued a violation
report alleging various violations of both the monetary and regularconditions of probation, including the fact that defendant had been
charged with simple assault in 99CR12063. The violation report
also noted that defendant had failed to appear for her court date
and that an order for arrest had been issued. According to the
“Dismissal Notice of Reinstatement” submitted by defendant and
included as an exhibit to the record on appeal, the assault charge
in 99CR12063 was dismissed with leave, when defendant failed to
appear and could not be found when the matter was called for trial.
On 31 January 2002, the superior court found defendant in
violation of certain terms and conditions of her probation, as
alleged in the 8 February 2000 violation report. The court,
therefore, entered an order modifying certain terms of defendant's
probation. Specifically, the court retroactively extended
defendant's probation from 18 May 2000 to 18 May 2003.
On 10 September 2002, the superior court heard “a motion to
modify the conditions of the defendant's probation for good cause
without charge of violation.” Consequently, the court entered an
order extending defendant's probationary period from 17 May 2003 to
18 May 2004, “for good cause without charge of violation.”
More recently, on 25 August 2003, defendant's probation
officer filed a violation report alleging that despite having been
previously “violated” in this case for the same violation,
defendant had failed to report for scheduled office contacts, and
was in arrears on the monetary obligations of her probation. This
matter was heard by the trial court during the 27 October 2003
session of superior court. After defendant admitted to having violated the terms and
conditions of her probation, the trial court found defendant in
willful violation of her probation as alleged in the 25 August 2003
violation report. The court entered a judgment revoking
defendant's probation and activating her suspended sentence.
Defendant appeals. In addition, defendant has filed a motion for
appropriate relief, which is presently pending before this Court.
Defendant's appeal and motion for appropriate relief present
the same issue: Whether the trial court had jurisdiction to revoke
her probation. Defendant contends that her probationary period had
expired prior to the filing of the 25 August 2003 violation report,
upon which her probation was revoked. She argues then that the
trial court did not have jurisdiction to revoke her probation on 29
October 2003. We agree.
A court's jurisdiction to review a defendant's compliance with
the terms and conditions of probation is limited by statute. State
v. Hicks, 148 N.C. App. 203, 204, 557 S.E.2d 594, 595 (2001).
Ordinarily, the sentencing court determines the length of probation
a defendant is obligated to serve, up to a maximum of five years.
N.C. Gen. Stat. § 15A-1342(a)(2003). The General Statutes,
however, provide three provisions under which the court may extend
or otherwise modify a defendant's probation. See N.C. Gen. Stat.
§§ 15A-1342(a); 1344(d)(2003). N.C. Gen. Stat. § 15A-1342(a)
provides:
Extension. -- The court with the consent of
the defendant may extend the period of
probation beyond the original period (i) for
the purpose of allowing the defendant tocomplete a program of restitution, or (ii) to
allow the defendant to continue medical or
psychiatric treatment ordered as a condition
of the probation. The period of extension
shall not exceed three years beyond the
original period of probation. The special
extension authorized herein may be ordered
only in the last six months of the original
period of probation. Any probationary
judgment form provided to a defendant on
supervised probation shall state that
probation may be extended pursuant to this
subsection.
Id. (emphasis added). Moreover, as pertinent to this case, N.C.
Gen. Stat. 15A-1344(d) provides:
At any time prior to the expiration or
termination of the probation period, the court
may after notice and hearing and for good
cause shown extend the period of probation up
to the maximum allowed under G.S. 15A-1342(a)
and may modify the conditions of probation.
The probation period shall be tolled if the
probationer shall have pending against him
criminal charges in any court of competent
jurisdiction, which, upon conviction, could
result in revocation proceedings against him
for violation of the terms of this probation.
Id. (emphasis added).
In the instant case, absent an extension or modification,
defendant's probation would have expired on 18 May 2001. However,
the exhibits to the record on appeal show that defendant was
charged by citation on 8 September 1999 in 99CR12063 with simple
assault; and that on 8 February 2000, defendant's probation officer
filed a violation report, in which it was alleged, in pertinent
part, that defendant had been charged with simple assault in
99CR12063 in violation of the regular condition of probation. See
N.C. Gen. Stat. § 15A-1343(b)(1)(2003)(providing that “As [a]
regular condition[] of probation, a defendant must: (1) Commit nocriminal offense in any jurisdiction.”). Though a hearing was not
held on the 8 February 2000 violation report until 31 January 2002,
under the clear language of N.C. Gen. Stat. 15A-1344(d),
defendant's probation period was tolled upon defendant being
charged with the assault in 99CR12063. Accordingly, defendant's
probationary period had not expired at the time that the trial
court entered its 31 January 2002 order modifying and extending her
probation through 18 May 2003.
While defendant argues that the tolling provision of N.C. Gen.
Stat. § 15A-1344(d) was negated by the 30 June 2000 dismissal with
leave in 99CR12063, we disagree. See State v. Bell, 156 N.C. App.
350, 356, 576 S.E.2d 695, 699 (2003)(referring to the dismissal
with leave as a “procedural calendaring device”). In Bell, the
Court quoted, “'dismissal [with leave] results in removal of the
case from the court's docket, but the criminal proceeding under the
indictment is not terminated.” Id. (quoting State v. Lamb, 321
N.C. 633, 641, 365 S.E.2d 600, 604 (1988))(alteration in original).
We conclude then that the trial court did have jurisdiction on 31
January 2002 to retroactively extend defendant's probation through
18 May 2003.
The court's subsequent action to modify and extend defendant's
probationary period to 18 May 2004, however, was contrary to the
provisions of the General Statutes. As argued by the State, N.C.
Gen. Stat. 15A-1342(a) does indeed allow a defendant's period of
probation to be extended with the defendant's permission.
Nonetheless, even assuming that defendant did agree to such anextension in this case, she could not properly do so, because any
extension under subsection (a) was limited to “three years beyond”
and was required to have occurred within “the last six months the
original period of probation.” See N.C. Gen. Stat. § 15A-1342(a).
In this case, the trial court's 10 September 2002 order, purporting
to extend defendant's probation to 18 May 2004, occurred well
outside of the last six months of defendant's original period of
probation. The court's order was not valid, and therefore,
defendant's probation ended, as previously ordered by the superior
court, on 18 May 2003.
It necessarily follows that the superior court was without
jurisdiction to hear the probation violation report filed on 25
August 2003, and defendant's motion for appropriate relief must be
allowed. The judgment revoking defendant's probation based upon
the allegations contained in the 25 August 2003 violation report is
vacated, and this matter is remanded for defendant's discharge from
probation.
Vacated and remanded.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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