STATE OF NORTH CAROLINA
No. 03 CRS 64190
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
Terry F. Rose, Esq., for defendant-appellant.
The trial court erred by revoking defendant's probation approximately eighty days after his probationary period expired, because the court failed to make a judicial finding that the State made a reasonable effort to conduct the probation revocation hearing during the period of probation set out in the judgment and commitment.
On 16 July 2004, Dominique Hill (defendant) pled guilty to felony possession of marijuana. Pursuant to a plea agreement, judgment was entered pursuant to N.C. Gen. Stat. .90-96, which provided that defendant would be placed on supervised probation for eighteen months.
On 28 September 2005, defendant's probation officer filed a violation report alleging that defendant had been charged withfelony possession of cocaine and misdemeanor possession of drug paraphernalia in Craven County on 7 July 2005. Defendant's probation violation hearing was calendered in Pitt County for 31 October 2005. The record does not indicate what occurred in court on that date.
On 9 March 2006, the State dismissed the probation violation because the probation officer did not appear in court.
On 6 April 2006, approximately eighty days after the expiration of defendant's term of probation, the State prayed judgment in defendant's case. Defendant objected, asserting that the trial court was without jurisdiction over the case. The trial court overruled this objection, entered judgment based upon defendant's previous guilty plea, and imposed a sentence to six to eight months. This sentence was suspended, and defendant was placed on supervised probation for twenty-four months. Defendant appeals.
In his first argument, defendant contends that the trial court lacked subject matter jurisdiction in this case. We agree.
N.C. Gen. Stat. . 15A-1344(f) provides that [t]he 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). This Court has explicitly held thatthe requirements contained in N.C. Gen. Stat. . 15A-1344(f) apply to judgments entered pursuant to N.C. Gen. Stat. . 90-96. State v. Burns, 171 N.C. App. 759, 615 S.E.2d 347 (2005).
After the expiration of the period of probation, a trial court lacks jurisdiction to revoke a defendant's probation and activate a suspended sentence, except as provided in N.C. Gen. Stat. 15A-1344(f). State v. Camp, 299 N.C. 524, 527-28, 263 S.E.2d 592, 594 (1980). A trial court lacks jurisdiction to revoke probation and activate a suspended sentence when the trial fails 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. State v. Bryant, 361 N.C. 100, 102-03, 637 S.E.2d 532, 534 (2006). As in Bryant and Burns, the trial court here failed to make findings of fact as required pursuant to N.C. Gen. Stat. . 15A-1344(f)(2) before revoking defendant's probation.
We conclude, based upon the holdings of Camp, Bryant and Burns, that the trial court lacked jurisdiction to revoke defendant's probation. We therefore arrest the judgment of the trial court.
Because we conclude that the trial court lacked jurisdiction to revoke defendant's probation, we do not reach defendant's remaining arguments.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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