STATE OF NORTH CAROLINA
v. Forsyth County
No. 97 CRS 15079
BRYANT PATRICK BLACK
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).
*** Converted from WordPerfect ***