Appeal by defendant from judgment entered 21 April 2005 by
Judge Kimberly S. Taylor in Iredell County Superior Court. Heard
in the Court of Appeals 6 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Bertha L. Fields, for the State.
Eric A. Bach, for defendant-appellant.
Where defendant's probation was improperly extended by an
earlier order, the trial court was without jurisdiction to revoke
defendant's probation. Judgment vacated.
, defendant pled guilty in Forsyth County
to conspiracy to commit armed robbery and was sentenced to 15-27
months imprisonment. The trial court suspended the sentence,
placing defendant on supervised probation for twenty-four months,
to expire on 26
November 2003. Defendant's probation was
transferred from Forsyth County to Guilford County. On 7
November2003, defendant's probation officer signed a probation violation
report alleging several violations of the terms and conditions of
June 2004, in Guilford County, Judge Henry E. Frye, Jr.
found defendant willfully and without legal excuse violated each
condition of probation as alleged in the November 2003 report.
Pursuant to N.C. Gen. Stat. § 15A-1344, Judge Frye entered an order
imposing fifty hours of community service and extending defendant's
probation through 31 May 2005.
Defendant's probation was subsequently transferred to Iredell
County. On 24
February 2005, and 14
March 2005, defendant's
probation officer filed probation violation reports. On 21
2005, a probation revocation hearing was held in Iredell County
Superior Court. Judge Kimberly S. Taylor found that defendant had
willfully violated five conditions of probation, revoked
defendant's probation, and activated defendant's suspended
sentence. Defendant appeals.
In his sole argument on appeal, defendant contends that
trial court lacked jurisdiction to revoke his probation and
activate his suspended sentence on 21 April 2005. Based upon the
clear language of the statute and binding case authority, we are
compelled to agree.
A trial court must have subject matter jurisdiction over a
case in order to act in that case. In re N.R.M., 165 N.C. App.
294, 297, 598 S.E.2d 147, 149 (2004). In this case, defendant didnot raise the issue of subject matter jurisdiction before the trial
court. However, a defendant may properly raise this issue at any
time, even for the first time on appeal. State v. Bossee, 145 N.C.
579, 59 S.E. 879 (1907); see also State v. Price, 170 N.C. App. 57,
63, 611 S.E.2d 891, 895 (2005).
It is well settled that '[a] court's jurisdiction to review
a probationer's compliance with the terms of his probation is
limited by statute.' State v. Burns
, 171 N.C. App. 759, 760, 615
S.E.2d 347, 348 (2005) (quoting State v. Hicks
, 148 N.C. App. 203,
204, 557 S.E.2d 594, 595 (2001)).
Article 82 of Chapter 15A of the North Carolina General
Statutes governs probation. N.C. Gen. Stat. § 15A-1344(d) sets
forth the procedures for extending probation in the event of a
At any time prior to the expiration or
termination of the probation period, the court
may after notice and hearing and for good cause
shown extend the period of probation up to the
maximum allowed under G.S. 15A-1342(a) and may
modify the conditions of probation...If a
convicted defendant violates a condition of
probation at any time prior to the expiration
or termination of the period of probation, the
court, in accordance with the provisions of
G.S. 15A-1345...may revoke the probation and
activate the suspended sentence imposed at the
time of initial sentencing, if any....
Except as provided in N.C. Gen. Stat. § 15A-1344(f), a trial
court lacks jurisdiction to revoke a defendant's probation after the
expiration of the probationary term. State v. Camp
, 299 N.C. 524,
527-28, 263 S.E.2d 592, 594-95 (1980).
Under N.C. Gen. Stat. §
)(2005), revocation may occur
after expiration 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;
2) The court finds that the State has made
reasonable effort to notify the
probationer and to conduct the hearing
In the recent case of State v. Bryant
, our Supreme Court held
that a trial court lacked subject matter jurisdiction to revoke
probation and activate a suspended sentence when the probation
revocation hearing was held seventy days after the term of probation
had expired. State v. Bryant,
361 N.C. 100, 637 S.E.2d 532 (2006).
The Court held the plain language of N.C. Gen. Stat. . 15A-
1344(f)(2) requires the trial court to make a judicial finding that
the State has made a reasonable effort to conduct the probation
revocation hearing during the period of probation set out in the
judgment and commitment. Bryant
, at 102-03, 637 S.E.2d at 534.
In the instant case, defendant's original probation period
expired 26 November 2003. On 7 November 2003, defendant's probation
officer in Guilford County signed a violation report. There was no
hearing on these violations until 1 June 2004, over seven months
after the probation had expired
Under the plain language of G.S. . 15A-1344(d), a trial court
can only extend probation prior to the expiration or termination
of the probation period. There is no provision in the statute thatallows for the extension of probation after the original term has
Even if we treat the hearing in front of Judge Frye on 1 June
2004 as a revocation proceeding, rather than an extension
proceeding, there is still no jurisdiction. Revocation hearings may
only be held after the expiration of a term of probation where the
two conditions set forth in N.C. Gen. Stat. § 15A-1344(f) are met.
In this case, there was no finding by the court that there was a
reasonable effort to notify the probationer and conduct the hearing
earlier. Under the controlling rationale of Bryant
, we are
compelled to hold that Judge Frye was without jurisdiction to extend
the term of defendant's probation on 1 June 2004. Thus, the trial
court was without jurisdiction to revoke his probation on 21 April
'When the record 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.'
State v. Crawford
, 167 N.C. App. 777, 779, 606 S.E.2d 375, 377
(2005) (quoting State v. Felmet
, 302 N.C. 173, 176, 273 S.E.2d 708,
711 (1981)). Applying the holdings of prior case law and the
binding precedent of Bryant,
the subsequent revocation of
and activation of his suspended sentence was
in error because the trial court was without jurisdiction.
We further note from the record that Judge Taylor could not
have been aware of the jurisdictional defect for two reasons.
First, defendant did not raise this issue at the probationrevocation hearing. Second, the record does not disclose that the
documents concerning the proceedings in Guilford County were before
the trial court.
Judges WYNN and JACKSON concur.
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