An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA06-909
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
STATE OF NORTH CAROLINA
v.
Durham County
No. 98 CRS 12136
CONSTANCE SAAFIR
Appeal by Defendant from judgment entered 13 March 2006 by
Judge Abraham P. Jones in Superior Court, Durham County.
Heard in
the Court of Appeals 16 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Newton G. Pritchett, Jr., for the State.
William D. Spence for Defendant-Appellant.
McGEE, Judge.
Defendant was found guilty by a jury on 30 October 1998 of
keeping
a
dwelling
for
controlled substances.
the
purpose
of
possessing
or
selling
Defendant was sentenced to a term of eight
to ten months in prison, which the trial court suspended.
The
trial court placed Defendant on supervised probation for sixty
months.
Defendant gave notice of appeal on 30 October 1998.
In an
opinion filed 19 September 2000, this Court found no error, and the
judgment was certified to the superior court on 9 October 2000.
Defendant's
probation
officer,
L.R.
Caviness,
filed
a
-2probation violation report on 17 December 1999 alleging that
Defendant had failed to comply with the monetary conditions of her
probation,
had
failed
to
report
for
scheduled
probation
appointments, and had failed to complete community service hours.
After finding good cause pursuant to N.C. Gen. Stat. § 15A-1344,
Judge Henry W. Hight, Jr. entered an order on 12 November 2000
modifying Defendant's probation.
In addition to changing the
monetary conditions, the trial court ordered that "[D]efendant's
term of probation is extended for a period of 4 years, from 10-3000 to 10-29-04."
Probation Officer Jan Williams filed a probation violation
report on 24 September 2004 alleging that Defendant had violated
several conditions of her probation.
An order for Defendant's
arrest was issued on 27 September 2004. Defendant was arrested and
served with the violation report on 18 December 2005.
hearing,
the
trial
court
revoked
Defendant's
Following a
probation
and
activated the remainder of her sentence of imprisonment on 13 March
2006.
The dispositive issue on appeal is whether the trial court had
jurisdiction to revoke Defendant's probation.
Defendant asserts
that because her probation was revoked after the expiration of her
probation term, the trial court had no statutory authority to do so
because
it
failed
to
make
any
finding
that
the
State
made
reasonable efforts to notify her about its intent to revoke her
probation.
We agree.
Pursuant to N.C. Gen. Stat. § 15A-1344 (2005), a court may
-3revoke probation after the period of probation expires 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)(1)(2) 2005.
This Court has previously held that a trial court lacks both
the jurisdiction and authority to revoke a defendant's probation
where the trial court failed to make the finding required by
section (f)(2) of the above statute.
759, 763, 615 S.E.2d 347, 350 (2005).
it
was
reversible
defendant's
error
probation
for
nearly
the
three
State v. Burns, 171 N.C. App.
In Burns, we concluded that
trial
years
court
after
to
revoke
his
the
probation
expired where the trial court made no finding regarding the State's
efforts to notify the defendant of the State's intent to seek
revocation.
Id. at 760-61, 615 S.E.2d at 348.
In the present case, the trial court revoked Defendant's
probation on 18 December 2005 following the expiration of her
probation term.1
In so doing, the trial court made no finding as
to whether the State took reasonable steps to notify or locate
Defendant. In fact, there was no evidence presented at the hearing
1
Defendant notes that when the trial court extended the term of her
probation in 2000, it incorrectly calculated the term of her probation.
Because the probation term would have been stayed during the direct appeal
from her conviction, the expiration date would have been 9 October 2005, 60
months after the appeal was complete, not 29 October 2004 as specified in the
trial court’s modification order. Nevertheless, applying either of these
dates, the revocation of defendant’s probation occurred after expiration of
probation and, therefore, was subject to the requirements of N.C. Gen. Stat. §
15-A-1344(f).
-4indicating that the State took any steps to locate Defendant
between the time that the violation report was filed and the time
that Defendant was arrested.
Because the trial court failed to
make the findings required by N.C.G.S. § 15A-1344, we hold the
trial court lacked jurisdiction to revoke Defendant's probation.
The judgment from which Defendant appeals is arrested and Defendant
is discharged.
As a result of our holding, we need not address
Defendant's remaining assignment of error.
Judgment arrested.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e)
