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STATE OF NORTH CAROLINA v.
ANDREA ANTIONETTE BRYANT
The trial court lacked subject matter jurisdiction to revoke defendant's probation and
activate her suspended sentence more than two months after her probationary period had expired
due to the court's failure to make a finding of fact that the State had exerted reasonable efforts to
conduct a revocation hearing before expiration of the probationary period and its inability to
make such a finding because there was no evidence in the record to support it. N.C.G.S. § 15A-
1344(f). The case will not be remanded for the trial court to make the necessary finding when
the record lacks sufficient evidence to support the finding.
On 15 April 2002, the Durham County Grand Jury returned
a true bill of indictment charging defendant Andrea A. Bryant
with obtaining property by false pretenses. Consistent with a
negotiated disposition, defendant pleaded guilty as charged on 16
January 2003. The trial court sentenced defendant to a prison
term of eight to ten months, but suspended the active sentence
and imposed an eighteen month period of supervised probation. Further, as special conditions of her probation, defendant was
ordered, inter alia, to serve one day in jail and to pay
restitution and court costs.
On 11 May 2004, defendant's probation officer filed a
violation report with the Durham County Clerk of Court alleging
defendant failed to be at her residence for curfew checks on
sixteen separate specified occasions, failed to pay court costs,
and failed to pay restitution. The report also gave notice of a
hearing set for 7 June 2004 to review defendant's probation
status; however, no hearing was held on that date and the record
fails to disclose any specific reason for this failure.
Defendant appeared before the trial court for a
probation revocation hearing on 24 September 2004--seventy days
after the expiration of her probationary period. At the hearing,
defendant's attorney made the following remarks to the trial
Your Honor, just to tell you a little
about Ms. Bryant. Ms. Bryant is the young
lady who had been sick for a while with the
shingles and was unable to come to court.
She is better now. She is the mother of four
children. She's currently enrolled at North
Carolina State University. She's studying to
be an EMS. She has class Monday, Wednesday,
and Friday; she should graduate in December.
After considering remarks from counsel and defendant,
as well as the court's file, which included the original judgment
and probation revocation petition, the trial court activated
defendant's sentence, stating: Defendant admits willful
violation of the terms of her probationary judgment. Frankly,the number of violations are too much for me to say its [sic]
just financial and set it aside.
The determination of this case depends on the statutory
necessity of a finding of fact by the trial court on the issue of
whether the State made reasonable efforts to conduct defendant's
probation revocation hearing at an earlier time, and the
sufficiency of evidence in the record. Initially, we address the
State's argument that no finding was required to be made by the
trial court in this case.
The General Assembly, in enacting the controlling
statute, N.C.G.S. § 15A-1344(f), provided:
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.G.S. § 15A-1344(f) (2005) (emphasis added).
this statute, we use accepted principles of statutory
construction by applying the plain and definite meaning of the
words therein, as the language of the statute is clear and
unambiguous. Diaz v. Div. of Soc. Servs.,
360 N.C. 384, 387, 628
S.E.2d 1, 3 (2006) (citing Burgess v. Your House of Raleigh,
, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)); see also
Southerland v. B.V. Hedrick Gravel & Sand Co.
, 345 N.C. 739,
742-43, 483 S.E.2d 150, 151-52 (1997) (citing State v. Camp
N.C. 148, 152, 209 S.E. 2d 754, 756 (1974)). The statuteunambiguously 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.
The plain language of this statute leaves no room for
judicial construction. In the absence of statutorily mandated
factual findings, the trial court's jurisdiction to revoke
probation after expiration of the probationary period is not
preserved. The State's argument asks us to substitute the
unsworn remarks of defendant's counsel for a judicial finding of
fact. This we will not do, as the statute requires the trial
to make findings of fact. Even in light of the somewhat
informal setting of a probation revocation hearing, to accept
defense counsel's remarks as a finding of fact violates the plain
and definite meaning of the statute.
(See footnote 2)
The State argues that the unsworn remarks of
defendant's counsel, along with the scheduled hearing date
noticed on defendant's probation violation report, satisfy the
statutory requirement. In doing so, the State contends the
parenthetical statement made by the Court of Appeals in State v.
only requires evidence in the record, not an actual finding
of fact. 160 N.C. App. 593, 593-94, 586 S.E.2d 561, 561 (2003)
(parenthetically stating nor is there evidence in the record to
support such findings). Although this argument is creative, itis contrary to the explicit statutory requirement that the court
find . . . the State has made reasonable effort to notify the
probationer and to conduct the hearing earlier. N.C.G.S. §
15A-1344(f). The statute makes no exception to this finding of
fact requirement based upon the strength of the evidence in the
In State v. Camp
, this Court considered similar issues
and applied N.C.G.S. § 15A-1344(f) to the facts of that case.
299 N.C. 524, 263 S.E.2d 592 (1980). After noting the defendant
appeared before the superior court approximately twenty-three
times for a revocation hearing, although the hearing was always
continued and a revocation hearing was never conducted, id.
527, 263 S.E.2d at 594, our Court held, inter alia
[the trial court] did not find, as indeed [it] could not, that
the State had 'made reasonable effort . . . to conduct the
hearing earlier,' id.
at 528, 263 S.E.2d at 595. Because the
probationary period had expired and there was no requisite
finding of fact by the trial court, jurisdiction was lost by the
lapse of time and the court had no power to enter a revocation
, the trial court in the instant case
was without jurisdiction to revoke defendant's probation and to
activate defendant's sentence because it failed to make findings
sufficient to satisfy the requirements of the statute.
Additionally the State argues that if such a finding
were required, this case should be remanded for the trial court
to make the necessary finding. Ordinarily when [there is a
failure] to make a material finding of fact . . . , the case mustbe remanded . . . for a proper finding . . . . In the instant
case, however, further proceedings are neither necessary nor
advisable. N.C. Dep't of Env't & Natural Res. v. Carroll
N.C. 649, 674-75, 599 S.E.2d 888, 904 (2004) (internal citation
omitted). Moreover, when the record lacks sufficient evidence to
support such a finding, the case should not be remanded in order
to conserve judicial resources.
The State argues that the record contains two grounds
that would support the trial court in making the necessary
finding on remand. First is the State's attempt to set a hearing
date of 7 June 2004 referenced in the probation violation report,
before expiration of the probationary period. This failed
scheduling effort alone is insufficient to support a finding of
reasonable efforts. Second is defense counsel's remarks
regarding defendant's medical condition. Similarly, these
remarks alone are insufficient to support a finding of reasonable
efforts. Even when viewing these two grounds together in the
light most favorable to the State, they would not support the
statutorily mandated finding on remand. The record is devoid of
any persuasive evidence as to why there was more than a two-month
delay in conducting defendant's probation revocation hearing.
Additionally, it is the State's burden to have made reasonable
efforts to conduct the hearing at an earlier time, and therefore,
defense counsel's remarks did not assist the State in meeting its
burden. Defense counsel's remarks cannot be interpreted as an
explanation of efforts by the State
to conduct the hearing within
the probationary period. As such, although ordinarily this casewould be remanded for a proper finding, remand is not a proper
remedy sub judice
because the record lacks sufficient evidence to
support such a finding.
After considering the statute discussed above and
relevant case law, we conclude that no ambiguity should remain
regarding this issue. In the case at bar, the trial court
revoked defendant's probation on 24 September 2004--more than two
months after her probationary term had expired on 16 July 2004--
without making a finding that the State had exerted reasonable
efforts to conduct a hearing before expiration of the
probationary period. Based on the clear and unambiguous
statutory language and relevant case law, we can reach no
conclusion other than that the trial court lacked subject matter
jurisdiction to revoke defendant's probation due to its failure
and inability to make the statutorily mandated finding of fact.
Accordingly, we affirm the decision of the Court of Appeals which
vacated the activation of defendant's sentence for her conviction
of obtaining property by false pretenses.
Footnote: 1 The trial court also activated defendant's sentence for an
8 October 2002 embezzlement conviction. The Court of Appeals
affirmed in part and remanded the activation of this sentence.
As the dissent concurred with this result, the activation of this
sentence is not an issue before this Court and will not be
discussed. See N.C. R. App. P. 14(b)(1).
Footnote: 2 Black's Law Dictionary defines a finding of fact as a
determination by a judge, jury, or administrative agency of a
fact supported by the evidence in the record, [usually] presented
at the trial or hearing. Black's Law Dictionary 664 (8th ed.
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