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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. DEXTER LEON SURRATT
Filed: 16 May 2006
Probation and Parole_modifications after expiration of original term_no pending violation
The trial court lacked jurisdiction to revoke defendant's probation on 7 April 2005 where
the five year term of probation had begun on 24 September 1995 and had expired on 23
September 2000 without pending allegations of violations. The court lacked jurisdiction to
modify the probation judgment (as it did several times) after that date.
Appeal by defendant from judgment entered 7 April 2005 by
Judge James W. Morgan in Catawba County Superior Court. Heard in
the Court of Appeals 19 April 2006.
Attorney General Roy Cooper, by Assistant Attorney General Ann
B. Wall, for the State.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
Dexter Leon Surratt (defendant) appeals from judgment
entered finding him to be in violation of his probation and
activating a three year sentence imposed in 1994. We reverse.
On 14 June 1994, defendant received a suspended sentence of
three years in the custody of the Department of Correction
following a conviction of indecent liberties with a minor. Defendant's sentence was suspended, and he was placed on supervised
probation for sixty months. This probation period was to begin at
the expiration of his active sentence in companion case 93 CRS
On 24 September 1995, defendant was released from the
Department of Corrections after he completed his sentence in 93 CRS
12023. On this date, defendant began to serve the five years term
of probation concurrently with a ten year active sentence in a
separate case, 94 CRS 011654. He was released on parole on 24
January 1999 in the later case.
On 11 February 1999, without allegations of probation
violations, the trial court modified defendant's probation to waive
probation supervision fees of twenty dollars per month. Defendant
acknowledged receipt of this modification of the conditions of his
On 22 March 2001, without allegations of probation violations,
the trial court modified defendant's probation to reinstate payment
of probation supervision fees. Defendant did not sign this order
to acknowledge receipt of modifications of the conditions of his
probation. On 13 March 2003, the trial court purportedly modified
the conditions of defendant's probation to extend probation for
twelve months from 23 January 2004 to 23 January 2005, to undergo
sex offender treatment, and to undergo house arrest for ninetydays. Defendant signed this order to acknowledge receipt of the
conditions of probation.
On 1 November 2004, an order for arrest for felony probation
violation was served on defendant. The order alleged defendant
was: (1) suspended from his sex offender treatment program; and
(2) $350.00 in arrears in his probation supervision fees.
On 6 January 2005, the trial court found defendant had been
suspended from his sex offender treatment program and extended his
probation with additional conditions for another eleven months and
nine days from 22 January 2005 until 31 December 2005. The trial
court ordered defendant to sign a new contract for his sex offender
treatment program and ordered defendant not be unsupervised
presence of anyone under the age of eighteen years.
On 1 February 2005, an order for arrest for felony probation
violation was served on defendant. The order alleged defendant:
(1) missed two curfew checks; (2) was $470.00 in arrears in his
probation supervision fees; and
(3) had been suspended from his sex
offender treatment program on 1 February 2005 and had been in the
unsupervised presence of his sister, who was under eighteen years
On 7 April 2005, the trial court found defendant had violated
all three allegations contained in the violation report. The trialcourt revoked defendant's probation and activated his three year
sentence imposed and suspended in 1994. Defendant appeals.
Defendant argues the trial court lacked jurisdiction to modify
III. Probation Supervision
Defendant contends, the hearing court lacked jurisdiction to
enter a revocation judgment against [defendant]. Defendant argues
his five years term of probation began on 24 September 1995 and
ended on  September 2000, and all orders entered in this
matter after said date are a nullity and void ab initio. We
N.C. Gen. Stat. § 15A-1346 (2005) provides that a period of
probation commences on the day it is imposed and runs concurrently
with any other period of probation, parole, or imprisonment to
which the defendant is subject during that period.
On 24 September 1995, defendant began to serve a ten year
sentence in an unrelated and separate case (94 CRS 011654). On 24
September 1995, defendant also began to serve his probationary
He was released on parole on the later charge on 24
January 1999. Defendant's five year probationary period ended 23
The trial court, without allegations of probation violations,
modified defendant's probation to waive probation supervision fees
on 11 February 1999
. Defendant signed to acknowledge receipt of
this modification of the conditions of his probation.
On 18 March 2003, defendant consented to an one year extension
of his probation in lieu of a formal violation due to being
suspended from the Sexual Abuse Intervention Program. Defendant's
probationary period was purportedly extended from 23 January 2004
to 23 January 2005. The State contends, [a] finding of a
violation of probation conditions would have been grounds for
revocation of probation and activation of his original three year
On 6 June 2005, the trial court found defendant had violated
a valid condition of his probation when he refused to sign the new
sexual offense treatment program contract. The trial court
extended his probationary period an additional eleven months to 31
On 7 April 2005, the trial court held defendant had violated
all three allegations of the 1 February 2005
(1) missing two curfew checks; (2) being $470.00 in
arrears in his probation supervision fees; and (3) being suspended
from his sex offender treatment program on 1 February 2005 andbeing in the unsupervised presence of his sister, who was under
eighteen years of age
N.C. Gen. Stat. § 15A-1344(f) (2005) provides:
(f) Revocation after Period of Probation. --
The court may revoke probation after the
expiration of the period of probation 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
In State v. Camp, our Supreme Court held a trial court that
lacked jurisdiction over the defendant had no power to revoke the
defendant's probation. 299 N.C. 524, 528, 263 S.E.2d 592, 595
. The Court stated probation can be revoked and the
probationer made to serve a period of active imprisonment even
after the period of probation has expired if a violation occurred
during the period and if the court was unable to bring the
petitioner before it in order to revoke at that time. Id.
(internal quotations and citations omitted).
Here, defendant's term of probation expired on 23 September
Both extensions of defendant's probationary period occurred
long after the five years term of probation had expired without
allegations of defendant's violation prior to the expiration. Id. Defendant agreed to the waiver of his probationary fees within the
term of probation on 11 February 1999. The trial court had
jurisdiction over defendant at that time. No violations of
probation were alleged or pending at the time defendant's probation
The trial court lacked jurisdiction to revoke defendant's
probation and activate his sentence in February 2005
. N.C. Gen.
Stat. § 15A-1344(f)
Defendant's five years term of probation expired on 23
September 2000. The trial court lacked jurisdiction to reinstate
defendant's probation supervision fees or to make further
modifications to his probation judgment after that date. Camp
N.C. at 528, 263 S.E.2d at 595.
The trial court's judgment is
Judges GEER and JACKSON concur.
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