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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-399


Filed: 4 December 2007


    v.                        Guilford County
                            No. 02 CRS 103161

    Appeal by defendant from judgment entered 6 November 2006 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 30 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Jacqueline A. Tope, for the State.

    Greene & Wilson, P.A., by Thomas Reston Wilson, for defendant- appellant.

    TYSON, Judge.

    Leverne Jermaine Jordan (“defendant”) appeals from judgment entered revoking his probation and activating his suspended sentence for common law robbery pursuant to N.C. Gen. Stat. § 14- 87. We vacate the trial court's judgment.

I. Background

    On 27 February 2003, defendant pled guilty to common law robbery. The trial court sentenced defendant to twelve to fifteen months imprisonment, suspended the sentence and placed defendant on probation for thirty months. The trial court modified the original judgment on 30 November 2004 and ordered defendant to attend a residential program for thirty days and to submit to monthly drug tests. The trial court again entered an order modifying theoriginal judgment on 9 August 2005. In the second modification of the original order, defendant's probation term was extended for a period of one year from 26 August 2005 to 26 August 2006.
    On 11 May 2006, defendant's probation officer filed a probation violation report alleging defendant had violated certain terms of his probation. Defendant signed a written waiver of counsel on 17 July 2006. On 6 November 2006, the trial court held a probation revocation hearing. Defendant proceeded pro se and admitted he had wilfully violated his probation. The trial court found that defendant willfully violated the terms of his probation, revoked defendant's probation, and activated the suspended sentence. Defendant appeals.
II. Issue

    Defendant argues the trial court lacked subject matter jurisdiction when it revoked his probation and activated his suspended sentence.
III. Subject Matter Jurisdiction in Probation Revocation

    Defendant contends his probationary period had expired on 26 August 2006 and on 6 November 2006 the trial court lacked subject matter jurisdiction to revoke his probation pursuant to N.C. Gen. Stat. § 15A-1344(f). We agree.
    N.C. Gen. Stat. § 15A-1344(f) (2005) provides:
        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.

In addressing the second of these statutory requirements, our Supreme Court has stated, “[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, 534- 35 (2006). If the trial court fails to make the requisite finding, and the record lacks sufficient evidence to support such a finding, the trial court lacks the subject matter jurisdiction to revoke a defendant's probation. Id. at 105, 637 S.E.2d at 536.
    The State concedes that the record is devoid of any evidence showing the trial court complied with the statutory guidelines set forth in N.C. Gen. Stat. § 15A-1344(f)(2) to preserve subject matter jurisdiction. The trial court did not possess jurisdiction to enter its judgment revoking defendant's probation. State v. Camp, 299 N.C. 524, 263 S.E.2d 592 (1980). The State further concedes there is no evidence in the record to allow this Court to remand the case to the trial court for the requisite findings of fact. Bryant, 361 N.C. at 104, 637 S.E.2d at 535. The trial court's judgment revoking defendant's probation is vacated.
IV. Conclusion

    The trial court did not possess subject matter jurisdiction to enter its judgment revoking defendant's probation pursuant to N.C. Gen. Stat. § 15A-1344(f)(2). No evidence in the record exists toremand for findings of fact. The trial court's judgment is vacated.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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