An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-514

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006

STATE OF NORTH CAROLINA,

v .                         Durham County
                            Nos. 02 CRS 41702; 49468
ANDREA ANTIONETTE BRYANT,

    Appeal by defendant from judgments entered 24 September 2004 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 16 November 2005.

    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

NORTH CAROLINA COURT OF APPEALS

Filed: 21 February 2006



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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