An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1107

NORTH CAROLINA COURT OF APPEALS

Filed: 03 May 2005

STATE OF NORTH CAROLINA

v .                         Harnett County
                            No. 01 CRS 53465
JAMES ARTHUR MOORE                

    Appeal by defendant from judgment entered 28 June 2004 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 13 April 2005.

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

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    STEELMAN, Judge.

    On 6 August 2001, defendant, James Arthur Moore, was indicted for statutory rape. Pursuant to a plea agreement with the State, defendant pled guilty to indecent liberties with a minor. Defendant, but not his attorney, executed an information waiving the return of a bill of indictment on the indecent liberties charge and agreeing to be tried on the information. The trial court accepted defendant's guilty plea and imposed a suspended sentence of seventeen to twenty-one months imprisonment and placed defendant on supervised probation for twenty-four months. On 9 December 2002, the trial court found defendant had violated the requirements of his probation and extended defendant's probation for twelve months. On 28 June 2004, the trial court again found defendant tobe in violation of his probation. The trial court revoked defendant's probation and activated his seventeen to twenty-one months sentence. Defendant appeals.
    The sole issue on appeal is whether the trial court lacked jurisdiction to enter judgment upon an invalid information.
    The State argues this issue is not properly before this Court because on appeal the review of an order activating a suspended is limited to two areas: (1) the factual and evidentiary basis for finding that a violation occurred; and (2) the validity of the condition that was violated. See State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971). However, as with any challenge to subject matter jurisdiction, a challenge to the sufficiency of an indictment cannot be waived and may be asserted at any time, including for the first time on appeal. State v. Bullock, 154 N.C. App. 234, 244, 574 S.E.2d 17, 23 (2002), cert. denied, 540 U.S. 928, 157 L. Ed. 2d 231 (2003). Thus, this matter is properly before us.
    The North Carolina Constitution provides that: “[e]xcept in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment.” N.C. Const. art. I, § 22. Without a proper indictment or waiver of the same, the trial court lacks jurisdiction over the matter, and is therefore without authority to accept a defendant's guilty plea or impose punishment. McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966). If the trial court assumes jurisdiction where there is none, the conviction is a nullity. Id.
    In this case, there was not a proper waiver of indictment. In a non-capital felony case, a defendant may waive a bill of indictment, but the “[w]aiver of indictment must be in writing and signed by the defendant and his attorney.” N.C. Gen. Stat. § 15A- 642(c) (2004) (emphasis added). See also State v. Hayes, 261 N.C. 648, 650, 135 S.E.2d 653, 655 (1964); State v. Daniel, 19 N.C. App. 313, 314, 198 S.E.2d 464, 464 (1973). In this case, while defendant signed the waiver of indictment, his attorney did not. Thus, defendant's waiver of the bill of indictment must be set aside and his plea of guilty and the judgment pronounced thereon vacated. Id.
    Further, the original bill of indictment for statutory rape cannot serve as a basis for defendant's plea to the crime of indecent liberties. “[W]hen a defendant is indicted for a criminal offense he may be convicted of the charged offense or of a lesser included offense when the greater offense charged in the bill contains all the essential elements of the lesser offense[.]” State v. Riera, 276 N.C. 361, 368, 172 S.E.2d 535, 540 (1970) (citing N.C. Gen. Stat. § 15-170). The crime for which defendant was charged in the original indictment was statutory rape. Indecent liberties with a minor is not a lesser included offense of statutory rape, as each offense requires proof of a fact which the other offense does not. State v. Rhodes, 321 N.C. 102, 106, 361 S.E.2d 578, 581 (1987).    Since indecent liberties is not a lesser included offense of statutory rape, the bill of indictment could not support defendant's plea to the crime of indecent liberties. Furthermore, since defendant never lawfully waived indictment, the trial court lacked jurisdiction to take defendant's guilty plea, enter judgment, sentence him to probation, extend his probation, revoke his probation, or activate his sentence.
    Defendant's waiver of the bill of indictment is set aside. His guilty plea and the judgment pronounced thereon are vacated. The State may prosecute defendant on a bill of indictment or proper waiver thereof if it so elects, otherwise defendant will be discharged. See Hayes, 261 N.C. at 650-51, 135 S.E.2d at 655; Daniel, 19 N.C. App. at 314, 198 S.E.2d at 465.
    VACATED AND REMANDED.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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