IN THE MATTER OF: Buncombe County
W.A.W.
No. 02 J 34
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for respondent appellant.
McCULLOUGH, Judge.
On 31 January 2002, respondent was charged with being a
delinquent juvenile in that he committed a second-degree sexual
offense. On 8 March 2002, the State purported to amend the petition
by letter to charge respondent with first-degree statutory sexual
offense. On 21 March 2002, pursuant to a plea agreement, respondent
admitted to the reduced charge of crime against nature. On 2 July
2002, a disposition order was entered and respondent was placed on
probation. One of the conditions of his probation required
respondent to “cooperate with in-patient sex offender treatment.”
On 12 July 2002, respondent was charged with assault on a
government official. On 21 January 2003, respondent, pursuant to a
plea agreement, admitted to the reduced charge of simple assault.
Respondent was ordered to continue on probation. On 1 July 2003, a motion for review was filed alleging that
respondent had violated his probation by failing to complete sex
offender treatment. That same day, respondent's probation was
extended for one year to allow him to complete his sex offender
treatment. On 9 December 2003, a motion for review was filed
alleging that respondent had violated his probation by failing to
make sufficient progress in his sex offender treatment. On 18
December 2003, an order was entered continuing respondent's
probation and ordering him to spend seven days in secure custody,
and upon his release from custody respondent was to be released to
Hand-Up Homes.
On 12 July 2004, another motion for review was filed alleging
that respondent had violated his probation. The State alleged that
respondent failed to complete sex offender treatment and had been
discharged from Hand-Up Homes. The State also noted that respondent
had been arrested on felony sex offenses that had allegedly been
committed at the group home. On 5 August 2004, the trial court
found that respondent violated his probation and committed him to
training school for an indefinite period. Respondent appeals.
Respondent first argues that the trial court lacked
jurisdiction to impose and later revoke his probation because he
was never properly charged in the case. We agree.
Respondent was charged by petition with second-degree sexual
offense, which the State later attempted to amend by letter to
first-degree statutory sexual offense. Respondent subsequently
admitted to committing the offense of crime against nature and wasadjudicated a delinquent juvenile. However, respondent was never
charged with this offense, and it is not a lesser included offense
of first- or second-degree sexual offense. State v. Warren, 309
N.C. 224, 230, 306 S.E.2d 446, 450 (1983). “North Carolina law has
long provided that '[t]here can be no trial, conviction, or
punishment for a crime without a formal and sufficient accusation.
In the absence of an accusation the court a[c]quires no
jurisdiction whatever, and if it assumes jurisdiction a trial and
conviction are a nullity.'” State v. Neville, 108 N.C. App. 330,
332, 423 S.E.2d 496, 497 (1992). Respondent's admission did not
waive this jurisdictional defect. Id. at 333, 423 S.E.2d 496, 497;
see also In re Davis, 114 N.C. App. 253, 256, 441 S.E.2d 696, 698
(1994)(“jurisdiction over the subject matter of a proceeding cannot
be conferred by consent, waiver, or estoppel”). The State concedes
in its brief that “It appears the original admission by the
juvenile must be vacated.” Thus, because respondent was never
properly charged, the trial court lacked jurisdiction to adjudicate
him delinquent, to impose probation, to extend probation, or to
commit him to training school.
Because we find this issue dispositive of this case on appeal,
we need not consider respondent's other assignments of error.
Accordingly, the order adjudicating respondent a delinquent
juvenile and the subsequent orders adjudicating him to be in
violation of his probation are vacated.
Vacated.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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