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1. Probation and Parole_revocation_after expiration of probation period_jurisdiction
The trial court lacked jurisdiction to revoke the first of defendant's two probations where the revocation hearing was held after the expiration of his probation period. Defendant's arrest on an assault charge tolled the period of probation, but the remaining time expired after his plea to that charge and before the hearing. The court could have revoked defendant's probation if the State had filed a written motion before the expiration of the probation period indicating intent to conduct a hearing and the court had found that the State had made a reasonable effort to conduct the revocation hearing earlier, but these conditions did not occur. N.C.G.S. § 15A-1344(d) and (f).
2. Probation and Parole_revocation_findings
The trial court's findings concerning a probation revocation were sufficient, although they were mostly contained in preprinted text.
3. Probation and Parole_revocation_notice of probation terms
Defendant was given notice of the terms of his probation sufficient for revocation where he acknowledged the monetary condition, that condition was not changed in a subsequent modification, and the breach of that condition was a valid basis for for revocation.
4. Probation and Parole_revocation_new probation officer_non-hearsay testimony
There was sufficient non-hearsay evidence to support a probation revocation, even if the Rules of Evidence applied in probation proceedings.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Hall & Hall, P.C., by Douglas L. Hall, for defendant- appellant.
Tyrone Braxton Henderson (defendant) pled no contest on 5January 2000 to one charge of possession of cocaine. Defendant
received a suspended sentence of six to eight months in prison and
was placed on supervised probation for twenty-four months (first
probation). The conditions of defendant's first probation mandated
that defendant, inter alia: (1) commit no criminal offense; (2)
report to a probation officer as directed; (3) notify the probation
officer if defendant failed to obtain or maintain gainful
employment; and (4) pay $494.00 in costs, fines, and fees, as well
as a probation supervision fee to be determined by defendant's
probation officer. At a probation violation hearing, defendant was
found to have violated conditions of his first probation, and in an
order filed 17 July 2000, defendant's first probation was extended
for one year to 4 December 2002.
Defendant was arrested on 3 November 2002 pursuant to a warrant alleging felonious assault with a deadly weapon inflicting serious injury. Defendant's probation officer filed a probation violation report on 25 November 2002 alleging violations of defendant's first probation and noting defendant's pending criminal charge. This probation violation report was never heard by the trial court, and the expiration date of defendant's first probation, 4 December 2002, passed without further court proceedings. As to defendant's pending criminal charge, defendant pled no contest to a reduced charge of misdemeanor assault with a deadly weapon. In a judgment dated 17 September 2003, defendant received a suspended sentence of 150 days and was placed on supervised probation for thirty months (second probation). Theconditions of defendant's second probation were, inter alia: (1) to report to his probation officer as directed; (2) to notify the probation officer if he failed to obtain or maintain gainful employment; and (3) to pay $383.00 in costs and fees, as well as a probation supervision fee to be determined by the probation officer.
Defendant's probation officer filed a probation violation report on 13 October 2003 alleging defendant violated his second probation by failing to report to his probation officer. In a 28 October 2003 addendum to the probation violation report, the probation officer alleged defendant also violated his first probation by: (1) using and testing positive for cocaine; (2) failing to report for office visits; (3) failing to pay the supervision fee; and (4) committing the aforementioned criminal offense of assault with a deadly weapon. In two separate orders signed 17 November 2003, the trial court modified each of defendant's probationary sentences to include intensive probation, and extended defendant's first probation for five years, to 3 December 2004. By an order signed 27 October 2004, defendant's first probation was extended for an additional six months, to 1 June 2005. Defendant executed a waiver of his right to a hearing and agreed to the extension.
In a probation violation report dated 5 April 2005, defendant's probation officer alleged that defendant committed numerous violations of his first probation. The report alleged that defendant: (1) failed and refused to report to his probationofficer; (2) failed to notify the probation officer of gainful employment; (3) was in arrears on the monetary conditions of his probation; and (4) was unsuccessfully terminated from a therapeutic program. In a second probation violation report dated 5 April 2005, the probation officer alleged that defendant also violated conditions of his second probation in that defendant: (1) was in arrears on the monetary conditions of his probation; (2) failed to report to his probation officer; and (3) failed to report gainful employment.
A hearing was held 31 May 2005 on the alleged probation violations. At the hearing, defendant's probation officer testified that defendant had violated the conditions as set forth in the two 5 April 2005 violation reports. The probation officer stated that "[defendant] also has failed to pay $383 on [the September 2003 judgment]. [Defendant has] paid nothing on it to date. I checked that this morning." Defendant testified that he had discussed the allegations in the probation violation reports with his attorney and understood that he had a right to deny the allegations. Defendant then admitted that he failed to comply with the terms and conditions of his probation. The trial court orally stated that "[defendant] voluntarily admitted that he failed to comply with the terms and conditions of his probation as set forth in the April 5, 2005 violation reports." The trial court concluded as a matter of law that defendant had "done so without legal excuse or lawful justification." In orders signed 31 May 2005, the trial court entered judgments revoking both of defendant's probationarysentences and activating both suspended sentences. Defendant appeals from both judgments.
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