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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-869


Filed: 5 June 2007


v .                         Chatham County
                            Nos. 02 CRS 03932-35

    Appeal by Defendant from judgment entered 13 March 2006 by Judge Steve Balog in Superior Court, Chatham County. Heard in the Court of Appeals 20 February 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

    Paul T. Cleavenger, for defendant-appellant.

    WYNN, Judge.

    A trial court may revoke a defendant's probation and activate her suspended sentence after the expiration of the period of probation only when the State has filed a written motion prior to the expiration of the period indicating its intention to conduct a hearing, and the trial court finds that the State made reasonable efforts to notify the probationer and conduct the hearing earlier.   (See footnote 1)  Here, we conclude that the trial court failed to make the requisite findings as to the State's reasonable efforts to locate the defendant. Accordingly, we remand to the trial court.
    On 11 October 1999, Defendant Judith Smith Lindsay pled guilty to four charges of obtaining property by false pretenses and wassentenced to four consecutive terms of a minimum of five months' and maximum of six months' imprisonment. The trial court then suspended the sentence and placed Defendant on supervised probation for sixty months. However, the trial court failed to make findings, as required by North Carolina General Statute § 15A- 1343.2(d)(3), as to why Defendant should be sentenced to a longer probationary period than the statutory maximum of thirty months.
    In March 2002, Defendant moved from her residence in Chatham County to Columbia, South Carolina, intending to take employment there. According to Defendant, she left in part because of financial difficulties and because she had learned that she might face activation of her prison sentence due to her failure to pay the restitution ordered by the trial court. After leaving Chatham County, Defendant did not inform her probation officer of the move or update him as to her whereabouts. On 23 July 2002, thirty-three months after Defendant was placed on probation, her probation officer filed reports of her violations for leaving her residence and failing to make her new location known, and a warrant for her arrest was issued.
    According to her probation officer, numerous attempts were made to locate Defendant after she became an absconder, including turning the case over to an intensive surveillance officer, following up on tips from the FBI, and checking bank records for any activity by Defendant. However, Defendant was not located until she turned herself in on 6 February 2006, after receiving a letter in the mail concerning the warrant for her arrest. Prior tothe hearing on her violations, Defendant filed a motion to dismiss on the grounds that the trial court was without jurisdiction because the violation reports were not filed before her term of probation had expired. The trial court denied her motion, found that Defendant had willfully violated her probation, and activated her prison sentence of five to six months' imprisonment on each of the four underlying charges. Defendant now appeals, arguing that the trial court erred by denying her motion to dismiss.
    Defendant contends that the trial court lacked jurisdiction to hear her probation violation because the violation reports were filed after the expiration of her term of probation. This argument relies on the underlying assumption that, because the first trial court failed to make specific findings to extend her probation beyond the statutory thirty-month maximum, the sixty-month term was invalid, and her probation expired after only thirty months. We disagree.
    North Carolina General Statute § 15A-1343.2(d)(3) provides that, “[u]nless the court makes specific findings of fact that longer or shorter periods of probation are necessary, the length of the original period of probation . . . [f]or felons sentenced to community punishment, [shall be] not less than 12 nor more than 30 months.” N.C. Gen. Stat. § 15A-1343.2(d)(3) (2005). Here, the trial court failed to make such specific findings yet sentenced Defendant to sixty months of supervised probation. We agree that this oversight was clear error, in violation of the statutory mandates for sentencing.    However, in such circumstances, the proper recourse for a defendant who has pled guilty is either to appeal as a matter of right within fourteen days of the entry of judgment, or to petition this Court for review by writ of certiorari if the right to prosecute the appeal has been lost by failure to take timely action. See N.C. Gen. Stat. § 15A-1444 (2005); N.C. R. App. P. 4(a)(2); N.C. R. App. P. 21(a). Defendant did neither here, instead essentially arguing to this Court that, due to the trial court's error, she was entitled to leave Chatham County and abscond probation after thirty months had passed, rather than pursue relief from the improper sixty-month term through proper legal channels.
    Defendant cannot challenge her original, suspended sentence by appealing an order activating that sentence, as such an approach would be an “impermissible collateral attack.” State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971). Moreover, a trial court may revoke a defendant's probation in his discretion upon hearing evidence of any violation of a valid condition of probation. State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (citations omitted), disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980). Evidence at the hearing in the instant case, including admissions by Defendant herself, clearly showed that she had violated the conditions of her probation by moving to South Carolina and failing to inform her probation officer of her whereabouts.
    Nevertheless, we also note the dual requirements of North Carolina General Statute § 15A-1344(f):        The court may revoke probation after the expiration of the period of probation 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) (2005). Our Supreme Court has explicitly addressed the second of these statutory requirements, finding that “[t]he plain language of this statute leaves no room for judicial construction[]” as to the necessity of a judicial finding, and there is “no exception to this finding of fact requirement based upon the strength of the evidence in the record.” State v. Bryant, 361 N.C. 100, 103, 637 S.E.2d 532, 535 (2006). If the trial court fails to make the requisite finding, and the record lacks sufficient evidence to support such a finding, then the trial court lacks the subject matter jurisdiction to revoke a defendant's probation. Id. at 105, 637 S.E.2d at 536.
    Here, Defendant's probation was revoked in March 2006, almost seven years after the original judgment was entered and well after the expiration of both the sixty-month term of probation imposed and the thirty-month term of probation allowed by statute. However, in contravention of N.C. Gen. Stat. § 15A-1344(f)(2), the trial court who revoked Defendant's probation and activated her sentence failed to make any finding as to the State's efforts to notify her and conduct the hearing earlier. Still, unlike in Bryant, in which the record lacked substantive evidence of suchefforts, the transcript of the hearing below contains testimony from Defendant's probation officer as to the efforts made to locate her after she had absconded. In such a case, we remand to the trial court to make the necessary finding. See id. at 104, 637 S.E.2d at 535 (quoting N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004)) (“Ordinarily, when [there is a failure] to make a material finding of fact . . ., the case must be remanded . . . for a proper finding.”).
    Judges STEELMAN and JACKSON concur.
    Report by Rule 30(e).

Footnote: 1
     N.C. Gen. Stat. § 15A-1344(f) (2005).

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