An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 May 2006
STATE OF NORTH CAROLINA
No. 03 CRS 50911
JAMES RICHARD PARKER III
Appeal by defendant from order entered 8 April 2005 by Judge
Paul L. Jones in Lenoir County Superior Court. Heard in the Court
of Appeals 29 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General M.
Janette Soles, for the State.
Nicholas E. Harvey, Sr., for defendant-appellant.
James Richard Parker III (defendant) appeals from order
entered extending the term of his probation an additional six
months. We dismiss.
On 17 November 2003, defendant was sentenced to a term of
twenty-four months of supervised probation on the charge of
obstruction of justice. He was also sentenced to a term of twelve
months of supervised probation on the charge of inciting a riot,
which was ordered to run at the expiration of his sentence imposed
for the obstruction of justice charge. Defendant was also
sentenced to a term of twelve months of supervised probation on the
charges of conspiracy to injure real property and possession ofmarijuana, which was ordered to run at the expiration of his
sentence imposed for the inciting a riot charge. Defendant's
probation for the conspiracy to injure real property and possession
of marijuana charges included the condition that defendant not use,
possess, or control any illegal drug or controlled substances and
that he submit to drug testing when instructed by his probation
On 24 August 2004, defendant's probation officer filed a
violation report alleging he had tested positive for marijuana, in
violation of the condition of his probation which stated he [n]ot
use, possess, or control any illegal drug or controlled substance
unless it has been prescribed for the defendant by a licensed
physician and is in the original container with the prescription
number affixed on it. A probation violation hearing was held on
16 November 2004 and was continued on 2 December 2004. At the
hearing, defendant stipulated that his urine sample was positive
for the active ingredients of marijuana, but denied that the
violation of the condition was willful.
Evidence was presented that defendant was currently taking
Marinol, a prescription medication that would result in his testing
positive for marijuana, although he was not actually using
marijuana itself. Defendant had specifically sought from his
doctor a prescription for Marinol. Prior to the probation
revocation hearing, defendant's physician was notified by
defendant's probation officer that he had tested positive on
numerous drug tests and that they should consider alternativetreatment options for his pain. However, at the hearing,
defendant's physician stated that defendant had claimed, in
speaking to the doctor, that he had numerous side effects when he
used other medications, such as anti-inflammatory medication and
narcotics, and the use of marijuana in the past had helped ease his
pain. Following the presentation of evidence and testimony by
various witnesses, including defendant and his physician, the trial
court extended defendant's term of probation for six months and
included the special condition that he be drug tested regularly,
including the requirement that a drug test be administered within
twenty-four hours of the hearing. Defendant appeals from this
Defendant argues the trial court erred when it concluded he
violated his probation and imposed a special term of probation.
III. Consecutive Terms of Probation
Defendant contends he was sentenced to three consecutive terms
of probation and the condition that he not use or be found in
possession of illegal drugs was only a condition of his third term
of probation, which he had not yet begun to serve. We disagree.
N.C. Gen. Stat. § 15A-1346(a) (2005) provides that [e]xcept
as provided in subsection (b), a period of probation commences on
the day it is imposed and runs concurrently with any other period
of probation, parole, or imprisonment to which the defendant is
subject during that period. Pursuant to this statute, any
sentence of probation must run concurrently with any otherprobation sentences imposed on a defendant. State v. Canady, 153
N.C. App. 455, 459-60, 570 S.E.2d 262, 265 (2002); see State v.
Howell, 169 N.C. App. 58, 67-68, 609 S.E.2d 417, 423 (2005)
(holding consecutive sentences of probation violate N.C. Gen. Stat.
§ 15A-1346). N.C. Gen. Stat. § 15A-1346(b) (2005) provides the
only exception in which a trial court may adjust the timing of a
probationary sentence. This exception only applies to the
commencement of a probationary sentence when the defendant is
already serving or is going to be serving a prison sentence as
well. Canady, 153 N.C. App. at 460, 570 S.E.2d at 265.
Defendant's contention that he was sentenced to consecutive
terms of probation is without merit. The judgments in defendant's
case indicate that he is subject to three consecutive suspended
sentences and a total of two years of probation. The judgments
state that if defendant's probation was revoked, he would serve
three consecutive active sentences. It is within the discretion of
the trial court to sentence a defendant in this manner. See
Howell, 169 N.C. App. at 68, 609 S.E.2d at 423. Defendant was not
sentenced to consecutive terms of probation. All three of his
terms of probation began on the date the judgments were filed and
would have expired on 16 November 2005. See N.C. Gen. Stat. § 15A-
This Court has stated:
The doctrine of mootness is applicable to an
appellate proceeding where the original
question in controversy is no longer at issue.
In State ex rel
. Utilities Comm
. SouthernBell Tel
. & Tel
., our Supreme Court held
[w]hen, pending an appeal to this Court, a
development occurs, by reason of which the
questions originally in controversy between
the parties are no longer at issue, the appeal
will be dismissed for the reason that this
Court will not entertain or proceed with a
cause merely to determine abstract
propositions of law or to determine which
party should rightfully have won in the lower
Court. 289 N.C. 286, 288, 221 S.E.2d 322, 324
In re Denial of Request by Humana Hospital Corp
78 N.C. App. 637,
640, 338 S.E.2d 139, 141 (1968).
Defendant appeals from an order extending his term of
probation for an additional six months. Defendant was sentenced on
17 November 2003 to three terms of probation, which ran
concurrently. The longest probationary term imposed was twenty-
four months, which would have expired on 16 November 2005.
The trial court extended defendant's probation for six
additional months for his willful violation of the conditions of
his probation. Defendant's extended six month term of probation
expired on 15 May 2006.
In State v
, our Supreme Court held the trial court
lacked jurisdiction over the defendant due to expiration of his
probationary term and was without power to revoke the defendant's
probation. 299 N.C. 524, 528, 263 S.E.2d 592, 595 (1980).
Similarly, since the term of defendant's probation has expired,
this Court lacks jurisdiction over defendant. The original
question in controversy is no longer at issue. In re Denial of
Request by Humana Hospital Corp
78 N.C. App. at 640, 338 S.E.2dat 141. The issues involved in this appeal are moot. Defendant's
appeal is dismissed.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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