An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-329


Filed: 17 January 2006

IN THE MATTER OF:                            Buncombe County
W.A.W.                                      No. 02 J 34

    Appeal by juvenile from disposition order entered 5 August 2004 by Judge Marvin Pope in Buncombe County District Court. Heard in the Court of Appeals 9 January 2006.

    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.

    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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