State v Mackey, (05-96) 09/06/2005

Appeal by defendant from judgments entered 1 July 2004 by Judge D. Jack Hooks, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 15 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.

    Michelle FormyDuval Lynch for defendant-appellant.

    STEELMAN, Judge.

    Defendant William Frederick Mackey, Jr. originally pled guilty on 27 December 2001 in Orange County District Court to four counts of practicing medicine without a licence (New Hanover file number 02 CRS 23727); on 21 February 2002 in Orange County District Court to five counts of obtaining a controlled substance by fraud and one count of prescribing a prescription medicine without a license (New Hanover file number 02 CRS 23728-29); on 12 December 2002 in New Hanover County District Court of three counts of credit card fraud (02 CRS 19667-69); on 24 April 2003 in Pender County District Court to one count of larceny and five counts of common law forgery (New Hanover County file numbers 03 CRS 21320-21). Defendant was placedon probation in each of these cases for 24 months, with the exception of the 24 April 2003 convictions in New Hanover file numbers 03 CRS 21320-21, in which he was placed on probation for 12 months.
    Apparently, defendant's probation from Orange and Pender Counties was transferred to New Hanover County for supervision. Defendant's probation was extended as follows: in 02 CRS 23727, 24 months and 1 day until 27 December 2005; in 02 CRS 23728-29, 22 months and 10 days until 27 December 2005; in 02 CRS 19667-69, 12 months until 11 December 2005; in 03 CRS 21320-21, 20 months, 8 days until 27 December 2005.
    By violation reports filed 28 April 2004 in New Hanover District Court, defendant's probation officer alleged that defendant violated two conditions of his probation in each of the above-mentioned cases. After the district court found and concluded that defendant had willfully and without lawful excuse violated the terms and conditions of probation, as alleged in the 28 April 2004 violation reports, the court revoked defendant's probation and activated his suspended sentences. Defendant appealed to the superior court, and the matters were heard de novo by Judge Hooks during the 1 July 2004 session. Defendant waived his right to a hearing and admitted violating the terms and conditions of his probation as alleged in the violation reports. Judge Hooks found and concluded that defendant had willfully and without lawful excuse violated the terms and conditions of his probation as alleged in the violation reports, and ordered thatdefendant's probation be revoked and the eight suspended sentences be activated. Defendant again appeals.
    On appeal, defendant argues that the trial court was without jurisdiction to enter judgments in 02 CRS 23727, 02 CRS 23728, and 02 CRS 23729 because the probation violation reports were filed after his probationary term had expired. We disagree.
    The probationary periods for these convictions were originally set to expire as follows: 02 CRS 23727, 27 December 2003; 02 CRS 23728, 21 February 2004; and 02 CRS 23729, 21 February 2004. The reports alleging violation of the terms of probation for these cases was filed 28 April 2004, and probation was revoked 1 July 2004.
    This Court explained in State v. Hicks,
        When a sentence has been suspended and defendant placed on probation on certain named conditions, the court may, at any time during the period of probation, require defendant to appear before it, inquire into alleged violations of the conditions, and, if found to be true, place the suspended sentence into effect. But the State may not do so after the expiration of the period of probation except as provided in G.S. 15A-1344(f).
148 N.C. App. 203, 204-05, 557 S.E.2d 594, 595 (2001)(citations omitted)(emphasis removed). However, a defendant's probationary period may be extended beyond that originally set by the trial court. See e.g. N.C. Gen. Stat. §§ 15A-1342(a) and 15A-1344(d).     It is well-settled that a verified probation violation report is competent evidence sufficient to support revocation of probation. See State v. Duncan, 270 N.C. 241, 246-47, 154 S.E.2d 53, 58 (1967); State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d874, 876 (1981). Defendant waived a hearing on his probation violations and admitted to violating the terms and conditions of his probation. The State, therefore, did not make any formal proffer of evidence. The trial court did, however, have before it the verified violation reports of defendant's probation officer, which showed that defendant's probationary periods had been extended until 27 December 2005 in 02 CRS 23727, 02 CRS 23728-29, and 03 CRS 21320-21, and 11 December 2005 in 02 CRS 19667-69. In fact, trial counsel acknowledged on the record, “He's got eight cases. All of them are set to expire this December.”
    Since it appears from the face of the record that defendant's probation had been previously extended until December 2005, we conclude that the trial court had jurisdiction to enter judgment in this matter. Defendant's appeal is spurious and totally without merit.
    The judgments of the trial court revoking defendant's probation and activating his suspended sentences are, therefore, affirmed.
    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6)(2005).
    AFFIRMED.
    Chief Judge Martin and Judge Hunter concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***