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Probation and Parole--probation revocation--reasonable effort to conduct hearing prior to expiration of probation
The trial court had jurisdiction to revoke defendant's probation and activate the
suspended sentence for assault with a deadly weapon inflicting serious injury, and the case is
remanded to make sufficient material findings, because although the trial court's statutorily
required findings of fact were incomplete since merely issuing a warrant for arrest is not a
reasonable effort to conduct a hearing prior to the expiration of defendant's probation, there was
sufficient additional evidence in the record to support a reasonable effort finding including: (1)
calling defendant's employer only to be informed that defendant no longer worked there; (2)
leaving a note at defendant's residence only to receive a phone call from defendant's mother
saying he no longer lived there; (3) attempting to personally serve the warrant at defendant's
residence but being unable to locate defendant; and (4) soliciting the help of a surveillance
officer to locate defendant after the warrant was returned unserved.
Judge WYNN dissenting.
Appeal by defendant from judgment entered 12 September 2005
by Judge Alma L. Hinton in Pitt County Superior Court. Heard in
the Court of Appeals 5 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Gilda C. Rodriguez for defendant-appellant.
Wynn, Judge dissenting.
In the absence of statutorily mandated factual findings, the trial court's jurisdiction to revoke probation after expiration ofthe probationary period is not preserved. State v. Bryant, 361 N.C. 100, 103, 637 S.E.2d 532, 534 (2006). Here, the majority holds, and I agree, that the trial court failed to make the required statutory findings to preserve its jurisdiction to revoke Defendant's probation after the expiration of the period of probation. I, however, disagree with the majority's decision to remand this matter to enter sufficient findings because under Bryant, in the absence of the required statutory findings, this Court should vacate the order revoking Defendant's probation. In Bryant, the Supreme Court held that Section 15A-1334(f) of the North Carolina General Statute unambiguously 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. Id. at 102-03, 637 S.E.2d at 534. Moreover, [i]n the absence of statutorily mandated factual findings, the trial court's jurisdiction to revoke probation after expiration of the probationary period is not preserved. Id. at 103, 637 S.E.2d at 534. Furthermore,[t]he statute makes no exception to this finding of fact requirement based upon the strength of the evidence in the record. Id.
Here, as in Bryant, the trial court failed to make the required statutory findings of fact. Accordingly, Bryant compels us to set aside the trial court's order revoking Defendant's probation. Additionally, as in Bryant, the State asks this Court to remand this matter to the trial court to make additionalfindings. However, in this case, further proceedings are neither necessary nor advisable. Id. at 104, 637 S.E.2d at 535 (citation omitted).
Moreover, the majority states that it has found the necessary facts to support upholding the invocation of jurisdiction after the expiration of Defendant's probation:
Therefore, because there is sufficient evidence in the record to support a finding that the State made reasonable efforts to conduct a hearing prior to the expiration of defendant's probation, this case is remanded to the trial court to enter sufficient material findings.
Having so found and enumerated the findings of fact that would support the order in this case, the majority usurps the authority of the trial court to do the same by directing it to enter sufficient findings of fact.
Because the trial court failed to make the statutorily mandated findings, this matter should be vacated.
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