STATE OF NORTH CAROLINA v. ANTONIO HICKS
No. COA01–256
(Filed 28 December 2001)
Probation and Parole–revocation–after expiration of probation
period
The trial court erred by revoking defendant’s probation
where defendant received an eighteen-month probation on 18
February 1998; his probation was scheduled to expire on 18 August
1999; and the violation report was signed on 23 July 1999 but
not filed until 18 September 2000, thirteen months after the
probation period expired. For a court to retain jurisdiction
over a probationer after the period of probation has expired, the
plain language of N.C.G.S. § 15A-1344(f)(1) requires the State to
file a written motion with the clerk indicating the State’s
intent to conduct a revocation hearing before the period of
probation expires.
Appeal by defendant from judgment entered 10 October 2000 by
Judge Beverly T. Beal in Mecklenburg County Superior Court.
Heard
in the Court of Appeals 26 November 2001.
Attorney General Roy Cooper, by Special
General Judith R. Bullock, for the State.
Deputy
Attorney
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
EAGLES, Chief Judge.
On 18 February 1998, defendant Antonio Hicks pled guilty to
four counts of embezzlement.
Judge Raymond A. Warren suspended
defendant’s six to eight month term of imprisonment and placed
defendant on supervised probation for a period of eighteen months.
On 23 July 1999, Probation Officer Teneika Clifton (Officer
Clifton)
signed
and
dated
a
Violation
Report
alleging
that
defendant failed to pay monetary conditions of probation, that he
missed scheduled office appointments on four occasions, and that he
had absconded from supervision. The Violation Report and Order for
Arrest were file-stamped on 18 September 2000.
At the 10 October
2000 revocation hearing, defendant, appearing pro se, denied the
allegations contained in the Violation Report.
At the hearing, the State’s evidence tended to show that
Probation Officer Roxanne Prampong (Officer Prampong) inherited
defendant’s case from another officer on 3 April 2000.
time, defendant was alleged to be an absconder.
At that
Defendant’s file
indicated that defendant missed office appointments on 4 May 1999,
1 June 1999, 17 June 1999, and 22 June 1999.
The previous
probation officer made a home visit on 1 July 1999, left a note on
the door, but had no contact with defendant. Officer Prampong also
determined that as to the monetary conditions of his probation,
defendant was $360.00 in arrears.
Defendant testified that he met with Officer Clifton in April
1999.
Defendant testified that Officer Clifton told him that he
only had $120.00 left to pay, and then it would be over because he
would have met all of his obligations of the judgment.
The same
day, defendant went to bookkeeping and paid that money.
After he
did so, defendant assumed his probation was over.
He continued to
reside with his wife and children at the same location.
He
testified that he did not abscond and that if he had known that he
needed to pay more money, he would have done so.
After hearing testimony, Judge Beal found that the alleged
violations were true and willful.
Judge Beal revoked defendant’s
probationary sentence and activated the sentence of six to eight
months incarceration.
Defendant appeals.
On appeal, defendant contends that the trial court erred in
revoking defendant’s probation.
Defendant argues (1) that the
trial court lacked jurisdiction over the subject matter of the
hearing where the period of probation had expired before the time
of the hearing and (2) that the evidence was insufficient to
support the trial court’s finding of fact that defendant wilfully
and without lawful excuse violated the conditions of his probation.
A court’s jurisdiction to review a probationer’s compliance
with the terms of his probation is limited by statute.
In State v.
Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980), Justice
Huskins wrote:
When a sentence has been suspended and
defendant placed on probation on certain named
conditions, the court may, at any time during
the period of probation, require defendant to
appear before it, inquire into alleged
violations of the conditions, and, if found to
be true, place the suspended sentence into
effect.
G.S.
15A-1344(d)
(Supp.
1979).
(Citations omitted.) But the State may not do
so after the expiration of the period of
probation
except
as
provided
in
G.S.
15A-1344(f). (Citations omitted.)
North Carolina General Statute section 15A-1344(f) provides
that once the period of probation has ended, the court may revoke
probation only 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.
Here, defendant received an eighteen-month period of probation
that
began
on
18
February
1998.
Defendant’s
scheduled to expire on 18 August 1999.
probation
was
The date written by the
probation officer on the Violation Report indicates that the
officer signed the report on 23 July 1999.
The file-stamp on the
report, however, indicates that it was not filed with the clerk
until
18
September
2000,
thirteen
months
after
defendant’s
probation period expired. To properly revoke defendant’s probation
after 18 August 1999, the State would have had to file a written
motion with the clerk before the expiration of the probation period
indicating the State’s intent to conduct a revocation hearing.
This did not occur.
For a court to retain jurisdiction over a probationer after
the period of probation has expired, the plain language of N.C.G.S.
§ 15A-1344(f)(1) requires the State to “[file] a written motion
with
the
clerk
indicating
[the
State’s]
intent
to
conduct
revocation hearing” before the period of probation expires.
a
Here,
the State failed to file defendant’s Violation Report before
defendant’s probation period had expired.
Because the State’s failure to comply with the plain language
of N.C.G.S. § 15A-1344(f)(1) is dispositive, we decline to address
the additional arguments presented by defendant’s counsel and hold
that
the
dismissed.
probation
revocation
proceeding
should
have
been
“When the record shows a lack of jurisdiction in the
lower court, the appropriate action on the part of the appellate
court is to arrest judgment or vacate any order entered without
authority.”
State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d
832, 836 (1993) (quoting State v. Felmet, 302 N.C. 173, 176, 273
S.E.2d 708, 711 (1981)).
Accordingly, the judgment appealed from
is arrested and defendant discharged.
Judgment arrested.
Judges MARTIN and BIGGS concur.
