An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
STATE OF NORTH CAROLINA,
v
.
Durham County
Nos. 02 CRS 41702; 49468
ANDREA ANTIONETTE BRYANT,
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Ann Stone, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
JACKSON, Judge.
Andrea Antionette Bryant (“defendant”) pled guilty to
embezzlement on 8 October 2002. She was given a suspended sentence
of ten to twelve months imprisonment, and placed on thirty-six
months of supervised probation. The conditions of her probation
included serving four days in jail, completing community service,
paying court costs and attorney's fees, and paying restitution. On
16 January 2003, defendant pled guilty to obtaining property by
false pretenses, and was given a suspended sentence of eight to ten
months imprisonment, and placed on eighteen months of supervised
probation. As a condition of her probation for this conviction,
she was ordered to serve one day in jail, and pay restitution and
court costs. On 11 May 2004, defendant's probation officer filed violation
reports alleging defendant had violated various conditions of both
of her probations. A probation violation hearing was held on 24
September 2004 in Durham County Superior Court. At the hearing,
defendant admitted to violating the conditions regarding curfew
checks and arrearage for restitution, but asked that the court
allow her to remain on probation so that she could continue working
to better herself and continue making payments towards restitution.
The trial court revoked defendant's probation in both cases, and
activated her sentences. Defendant appeals from this order.
Defendant first contends the trial court lacked jurisdiction
when it revoked her probation for the obtaining property by false
pretenses conviction.
In State v. Hicks, this Court stated:
A court's jurisdiction to review a
probationer's compliance with the terms of his
probation is limited by statute. . . . “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) (quoting
State v. Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980))
(citations omitted) (emphasis in original). North Carolina General
Statutes, section 15A-1344(f) (2004) provides that probation may be
revoked after the probation period has expired, only 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
earlier.
N.C. Gen. Stat. § 15A-1344(f) (2004) (emphasis added). Therefore,
in order to satisfy the requirements of North Carolina General
Statutes, section 15A-1344(f), the State must satisfy three
conditions: “the probationer must have committed a violation during
[her] probation, the State must file a motion indicating its intent
to conduct a revocation hearing, and the State must have made a
reasonable effort to notify the probationer and conduct the hearing
sooner.” State v. Cannady, 59 N.C. App. 212, 214, 296 S.E.2d 327,
328 (1982). The burden of establishing the trial court's
jurisdiction over a revocation hearing after the probation period
has expired is one that rests solely with the State. State v.
Moore, 148 N.C. App. 568, 571, 559 S.E.2d 565, 566-67 (2002).
In the instant case, defendant's probation period for the
obtaining property by false pretenses conviction expired on 16 July
2004. The violation report alleging violations of her probation
conditions for this conviction was filed with the Durham County
Clerk of Superior Court on 11 May 2004, and was signed by defendant
on 17 May 2004. The violation report stated that a hearing on the
charges contained in the report would be held on 7 June 2004 in
Durham County Superior Court. This report served to satisfysubsection one of North Carolina General Statutes, section 15A-1344(f).
However, during defendant's probation revocation hearing on 24
September 2004, the trial court made no findings of fact concerning
the State's efforts to conduct defendant's revocation hearing prior
to the expiration of her probation period on 16 July 2004. The
State failed to offer any evidence showing the reasonable efforts
that it had made to conduct the hearing prior to the expiration of
the probation period, and at no point during the hearing did the
State offer evidence of dates on which it attempted to hold
hearings prior to 16 July 2004. On appeal, the State contends that
statements made by defendant's counsel during the hearing are
sufficient to establish reasonable efforts on the part of the
State. We disagree. Defendant's counsel stated to the trial
court, “Ms. Bryant is the young lady who had been sick for a while
with the shingles and was unable to come to court.” Arguably this
statement could be referring to defendant's absence from a
revocation hearing held 7 June 2004, as noticed in the violation
report. However, the record does not contain any evidence that the
State attempted to hold defendant's probation revocation hearing on
7 June 2004 or any other date prior to the end of her probation
period on 16 July 2004. Defense counsel's statement alone is
insufficient to establish that the State attempted to conduct the
revocation hearing at any point prior to the expiration of
defendant's probation period, and in fact counsel's statement could
very well be referring to defendant's inability to come to courtfor a hearing in late July or in August. Without more, we cannot
be certain.
As this Court held in State v. Hall, when
the record shows that the trial court did not
make any findings (nor is there evidence in
the record to support such findings) that the
State made reasonable effort to conduct the
hearing earlier, we are compelled by State v.
Camp to hold that “jurisdiction was lost by
the lapse of time and the court had no power
to enter a revocation judgment against
defendant.”
160 N.C. App. 593, 593-94, 586 S.E.2d 561, 561 (2003) (quoting
Camp, 299 N.C. at 528, 263 S.E.2d at 595). On appeal, when a
record before us “'shows a lack of jurisdiction in the lower court,
the appropriate action on the part of the appellate court is to
arrest judgment or vacate any order entered without authority.'”
Moore, 148 N.C. App. at 570, 559 S.E.2d at 566 (citations omitted).
Therefore, as we have found no evidence in the record or revocation
hearing transcript indicating the State made reasonable efforts to
conduct defendant's revocation hearing prior to the expiration of
her probation period, we hold the trial court lacked jurisdiction
to conduct the revocation hearing. The trial court's judgment that
defendant violated the conditions of her probation for the
conviction of obtaining property by false pretenses is arrested and
the order activating her sentence is vacated.
Defendant next contends she is entitled to a new probation
revocation hearing for the embezzlement conviction based on the
fact that, as she alleges, the trial court improperly considered
evidence from the obtaining property by false pretenses convictionin revoking her probation for the embezzlement conviction. The
violation report for defendant's embezzlement conviction stated
that she willfully violated the following terms of her probation:
(1) she failed to complete the community service requirement; (2)
she violated the condition that she not be away from her residence
at certain hours of the day; (3) she failed to pay the restitution
ordered; and (4) she failed to pay probation supervision fees. At
the revocation hearing, the State informed the court that it would
abandon the allegation that she had failed to complete the
community service requirement. The defendant then admitted to
missing the curfew checks and to owing the court ordered
restitution, however she stated that she was making payments.
The violation report for defendant's embezzlement conviction
failed to list the dates on which defendant allegedly missed the
curfew checks and was to have been found to be in violation of the
condition that she be found at her residence at specific times of
the day. However, the violation report for defendant's obtaining
property by false pretenses conviction, which we have arrested and
vacated, did list the specific dates on which defendant missed the
curfew checks. On appeal, defendant now argues that the trial
court's consideration of the missed curfew checks found on the
obtaining property by false pretenses probation violation report
was in error, and constitutes grounds for a new probation
revocation hearing. Specifically, defendant contends the trial
court's statements that it was considering “all of the violations”shows that the court was considering the improper evidence. We
disagree.
Our courts consistently have held that violation of a single
condition of probation is sufficient to support the revocation of
that probation. See State v. Belcher, __ N.C. App. __, __, 619
S.E.2d 567, 570 (2005); State v. Seay, 59 N.C. App. 667, 670-71,
298 S.E.2d 53, 55 (1982) (“It is sufficient grounds to revoke the
probation if only one condition is broken.”), disc. review denied,
307 N.C. 701, 301 S.E.2d 394 (1983); State v. Braswell, 283 N.C.
332, 337, 196 S.E.2d 185, 188 (1973) (“The breach of any single
valid condition upon which the sentence was suspended will support
an order activating the sentence.”). Thus, although the violation
report may have been insufficient to constitute notice of the
alleged curfew checks, the violation report was sufficient to
provide defendant notice of the violation of the restitution
condition. As defendant admitted to owing the amount of money that
she was ordered to pay, we hold the violation of this probation
condition was sufficient to support the trial court's revocation of
her probation for her embezzlement conviction.
We also note that the judgment revoking defendant's probation
for her embezzlement conviction stated that the conditions she
violated, which resulted in the revocation of her probation, were
allegations numbered 1, 2, 3, and 4 of the violation report. As
previously noted, the State abandoned the allegation that defendant
violated the community service requirement, thus, this allegation
of a violation may not serve as a ground for revocation of herprobation, and should not be included on the judgment. Therefore,
we remand this judgment to the trial court to enter judgment
consistent with the conditions of defendant's probation that the
trial court properly found defendant to have violated.
Defendant next argues that the trial court improperly
considered alleged probation violations which were not listed in
the violation report. Specifically, defendant contends the court
erred when it considered statements made by defendant's probation
officer stating that she had tested positive for illegal drugs. As
we have already held that defendant's violation of the condition
that she pay restitution was sufficient to support the revocation
of her probation on the embezzlement charge, we need not address
this assignment of error.
In her final assignment of error, defendant contends the trial
court erred in failing to give credit for the time served as a
special condition of her probation for the embezzlement conviction.
We agree.
In State v. Farris, 336 N.C. 552, 444 S.E.2d 182 (1994), our
Supreme Court held that North Carolina General Statutes, section
15-196.1 mandates that a defendant is entitled to be awarded credit
for time served as a result of a condition of special probation.
As a condition of defendant's special probation for her
embezzlement conviction, she was ordered to serve four days in
jail. The judgment revoking defendant's probation for the
embezzlement conviction fails to give her credit for the four days
served, we therefore remand this judgment to the trial court andorder the court to enter a new judgment granting defendant credit
for the four days served as a condition of her special probation.
Affirmed in part, remanded in part, vacated in part.
Judge BRYANT concurs.
Judge Calabria concurring in part and dissenting in part in a
separate opinion.
Report per Rule 30 (e).
NO. COA05-514
STATE OF NORTH CAROLINA,
v. Durham County
Nos. 02 CRS 41702; 49468
ANDREA ANTIONETTE BRYANT
CALABRIA, Judge, concurring in part and dissenting in part.
I fully concur in the portions of the majority's opinion which
address revocation of defendant's probation on the embezzlement
conviction and the failure to give credit for time served.
However, because I disagree with the majority's holding arresting
the judgment and vacating defendant's sentence on the false
pretenses conviction, I respectfully dissent from that portion of
the opinion.
The majority relies on State v. Hall, 160 N.C. App. 593, 586
S.E.2d 561 (2003), to support arresting the judgment revoking
probation and vacating the order activating the sentence for the
false pretenses conviction. However, Hall does not mandate this
result in the case sub judice. The defendant in Hall violated her
probation and received notice of the date for her probation
revocation hearing. Although the date on the notice was for a date
prior to the expiration of her probation period, the probation
revocation was not conducted until after her probation period had
expired. A panel of this Court arrested the judgment and vacated
the sentence because the record was devoid of a reason for thedelay. While the violation report stated a pre-expiration hearing
date, which was acknowledged by defendant, the trial court in Hall
made no findings during the hearing or in its judgment that would
support jurisdiction to revoke defendant's probation on the date
the hearing actually occurred. See N.C. Gen. Stat. §
15A-1344(f)(2) (2005). Furthermore, there was no evidence in the
record which would support such a finding. This Court held:
Because the record shows that the trial court
did not make any findings (nor is there
evidence in the record to support such
findings) that the State made reasonable
effort to conduct the hearing earlier, we are
compelled by State v. Camp to hold that
'jurisdiction was lost by the lapse of time
and the court had no power to enter a
revocation judgment against defendant.'
Accordingly, as in Camp, the judgment appealed
from is arrested and defendant is discharged.
Hall, 160 N.C. App. at 593-94, 586 S.E.2d at 561 (citations
omitted).
The case sub judice differs from Hall in one material aspect:
there is evidence in the record that would support a finding the
State made reasonable efforts to conduct the hearing earlier. The
trial judge found, by incorporating the violation report by
reference, the State had scheduled a revocation hearing prior to
the probation period's expiration and defendant had acknowledged
the date of the hearing with her signature. Moreover, during the
hearing, defense counsel advised the trial court that defendant had
been unable to appear in court because she had been ill. These
facts, taken together, would support a finding that the State made
reasonable efforts to conduct the hearing earlier. Accordingly,this case should be remanded to the trial court for further
findings of fact on the issue of the State's efforts to conduct an
earlier hearing.
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