An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1699

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                No. 97 CRS 15079
BRYANT PATRICK BLACK
    

    Appeal by defendant from judgment entered 29 March 2004 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 31 October 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

    Moshera H. Mohamed for defendant-appellant.

    CALABRIA, Judge.

    Bryant Patrick Black (“defendant”) pled guilty pursuant to a plea agreement on 5 June 1997 to possession with intent to sell and deliver cocaine and attempt to possess cocaine. In accordance with the plea agreement, the trial court consolidated the offenses for sentencing, suspended defendant's sentence of eight to ten months imprisonment and placed defendant on thirty-six months supervised probation. Defendant's probation officer signed a violation report on 17 June 1999 alleging that: (1) Defendant's monetary obligation was in arrears; (2) Defendant was convicted of assault on a female on 9 March 1998; (3) Defendant missed several office visits with his probation officer; (4) Defendant was terminated unsuccessfullyfrom the Day Reporting Center; and (5) Defendant had a driving while license revoked charge pending in Forsyth County. Defendant was arrested for violating his probation and was brought before a magistrate for the violation on the same day defendant's probation officer signed the violation report. Defendant waived counsel on 30 August 1999. The three-year period of probation specified in the judgment was set to expire on 5 June 2000.
    On 31 August 2000, defendant's probation officer filed an addendum to the 17 June 1999 violation report. The addendum alleged that defendant additionally violated his probation by not seeking his probation officer's permission to leave his residence and not notifying his probation officer of his whereabouts. A probation violation hearing was held on 29 March 2004. At the start of the hearing, defendant's attorney moved to dismiss on the grounds that the violation report was not timely filed as to give defendant notice that a probation violation had occurred and that a hearing would be held. Citing State v. Moore, 148 N.C. App. 568, 559 S.E.2d 565 (2002), defendant's attorney specifically noted that the violation report lacked a file stamp to prove “beyond a reasonable doubt” that the report was filed before defendant's period of probation expired. The trial court denied the motion and defendant, through counsel, admitted violating his probation. The trial court found that defendant violated the terms and conditions of his probation and revoked defendant's probation. The trial court entered a Judgment and Commitment Upon Revocation of Probation stating, in part, that “The condition(s) violated andthe facts of each violation are set forth in paragraph(s) 1, 2, 4, 5, 6 in the Violation Report or Notice dated 06/17/1999 and Addendum - paragraph 3 dated 08/31/2000.” Defendant appeals.
    In his sole assignment of error, defendant contends the trial court erred in allowing the State to proceed on the probation violation. Defendant argues that the State did not file the probation violation report before the expiration of his probationary period.
    When the trial court suspends a sentence and places a defendant on probation on certain conditions, the court may, after notice and hearing, modify or revoke probation at any time prior to the expiration or termination of the probation period. N.C. Gen. Stat. § 15A-1344(d) (2003). After the probation period has expired, however, the trial court may revoke probation only if:
        (1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

        (2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.

N.C. Gen. Stat. § 15A-1344(f) (2003).

    Similar to the case before us, the defendant in Moore, 148 N.C. App. at 569, 559 S.E.2d at 566, challenged the trial court's jurisdiction over his probation violation hearing pursuant to N.C. Gen. Stat. § 15A-1344(f). In Moore, defendant's five-year period of probation was set to expire on 3 June 1999. Defendant's probation officer signed and dated a violation report on 3 November 1995. The violation report was not file stamped. An order fordefendant's arrest was entered 6 August 1996 and return of service on the order for arrest was made on 9 May 2000, which was after the expiration of defendant's probationary period. This Court held that in the absence of a file stamped motion or any other evidence of the motion's timely filing, there was insufficient evidence to support the State's contention that the violation report was filed before the period of probation had expired and the trial court was without jurisdiction to conduct a hearing. Id. at 571, 559 S.E.2d at 567.
    We find Moore instructive. Here, defendant's probation officer signed and dated the violation report on 17 June 1999. Like Moore, defendant's probation officer signed and dated the violation report before the expiration of defendant's probationary period, but the report lacked a file stamp to show that the report had been filed with the clerk before the expiration of defendant's probationary period. Unlike Moore, however, the record here contains sufficient evidence that defendant's violation report was filed before defendant's period of probation had expired. Specifically, the record shows that defendant was arrested and brought before a magistrate for the probation violation on 17 June 1999, the same day defendant's probation officer signed the violation report. Furthermore, defendant waived his right to counsel on 30 August 1999, which was also before the expiration of defendant's probationary period. This evidence indicates that the State filed a written motion with the clerk of its intent to conduct a revocation hearing. See N.C. Gen. Stat. §15A-1344(f)(1). We hold the trial court properly allowed the State to proceed on defendant's probation violation.
    Affirmed.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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