State v Parker
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1016 NORTH CAROLINA COURT OF APPEALS Filed: 16 May 2006 STATE OF NORTH CAROLINA v. Lenoir County No. 03 CRS 50911 JAMES RICHARD PARKER III Appeal by defendant from order entered 8 April 2005 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 29 March 2006. Attorney General Roy Cooper, by Assistant Attorney General M. Janette Soles, for the State. Nicholas E. Harvey, Sr., for defendant-appellant. TYSON, Judge. James Richard Parker III ( defendant ) appeals from order entered extending the term of his probation an additional six months. We dismiss. I. Background On 17 November 2003, defendant was sentenced to a term of twenty-four months of supervised obstruction of justice. probation on the charge of He was also sentenced to a term of twelve months of supervised probation on the charge of inciting a riot, which was ordered to run at the expiration of his sentence imposed for the obstruction of justice charge. Defendant was also -2sentenced to a term of twelve months of supervised probation on the charges of conspiracy to injure real property and possession of marijuana, which was ordered to run at the expiration of his sentence imposed for the inciting a riot charge. Defendant s probation for the conspiracy to injure real property and possession of marijuana charges included the condition that defendant not use, possess, or control any illegal drug or controlled substances and that he submit to drug testing when instructed by his probation officer. On 24 August 2004, defendant s probation officer filed a violation report alleging he had tested positive for marijuana, in violation of the condition of his probation which stated he [n]ot use, possess, or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it. A probation violation hearing was held on 16 November 2004 and was continued on 2 December 2004. At the hearing, defendant stipulated that his urine sample was positive for the active ingredients of marijuana, but denied that the violation of the condition was willful. Evidence was presented that defendant was currently taking Marinol, a prescription medication that would result in his testing positive for marijuana, marijuana itself. doctor a revocation he was not actually using Defendant had specifically sought from his prescription hearing, although for Marinol. defendant s Prior physician to was the probation notified by -3defendant s probation officer that he had tested positive on numerous drug tests and that they should consider alternative treatment options defendant s for physician his pain. stated that However, defendant at had the hearing, claimed, in speaking to the doctor, that he had numerous side effects when he used other medications, such as anti-inflammatory medication and narcotics, and the use of marijuana in the past had helped ease his pain. Following the presentation of evidence and testimony by various witnesses, including defendant and his physician, the trial court extended defendant s term of probation for six months and included the special condition that he be drug tested regularly, including the requirement that a drug test be administered within twenty-four hours of the hearing. Defendant appeals from this order. II. Issue Defendant argues the trial court erred when it concluded he violated his probation and imposed a special term of probation. III. Consecutive Terms of Probation Defendant contends he was sentenced to three consecutive terms of probation and the condition that he not use or be found in possession of illegal drugs was only a condition of his third term of probation, which he had not yet begun to serve. We disagree. N.C. Gen. Stat. § 15A-1346(a) (2005) provides that [e]xcept as provided in subsection (b), a period of probation commences on the day it is imposed and runs concurrently with any other period of probation, parole, or imprisonment to which the defendant is -4subject during that period. sentence of probation must Pursuant to this statute, any run concurrently probation sentences imposed on a defendant. with any other State v. Canady, 153 N.C. App. 455, 459-60, 570 S.E.2d 262, 265 (2002); see State v. Howell, 169 N.C. App. 58, 67-68, 609 S.E.2d 417, 423 (2005) (holding consecutive sentences of probation violate N.C. Gen. Stat. § 15A-1346). N.C. Gen. Stat. § 15A-1346(b) (2005) provides the only exception in which a trial court may adjust the timing of a probationary sentence. This exception only applies to the commencement of a probationary sentence when the defendant is already serving or is going to be serving a prison sentence as well. Canady, 153 N.C. App. at 460, 570 S.E.2d at 265. Defendant s contention that he was sentenced to consecutive terms of probation is without merit. The judgments in defendant s case indicate that he is subject to three consecutive suspended sentences and a total of two years of probation. The judgments state that if defendant s probation was revoked, he would serve three consecutive active sentences. It is within the discretion of the trial court to sentence a defendant in this manner. See Howell, 169 N.C. App. at 68, 609 S.E.2d at 423. Defendant was not sentenced to consecutive terms of probation. All three of his terms of probation began on the date the judgments were filed and would have expired on 16 November 2005. 1346(a). IV. This Court has stated: Mootness See N.C. Gen. Stat. § 15A- -5The doctrine of mootness is applicable to an appellate proceeding where the original question in controversy is no longer at issue. In State ex rel. Utilities Comm. v. Southern Bell Tel. & Tel. Co., our Supreme Court held that: [w]hen, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightfully have won in the lower Court. 289 N.C. 286, 288, 221 S.E.2d 322, 324 (1976). In re Denial of Request by Humana Hospital Corp., 78 N.C. App. 637, 640, 338 S.E.2d 139, 141 (1968). Defendant appeals from an order extending his term of probation for an additional six months. Defendant was sentenced on 17 November 2003 concurrently. to three terms of probation, which ran The longest probationary term imposed was twenty- four months, which would have expired on 16 November 2005. The trial court extended defendant s probation for six additional months for his willful violation of the conditions of his probation. Defendant s extended six month term of probation expired on 15 May 2006. In State v. Camp, our Supreme Court held the trial court lacked jurisdiction over the defendant due to expiration of his probationary term and was without power to revoke the defendant s probation. 299 N.C. 524, 528, 263 S.E.2d 592, 595 (1980). Similarly, since the term of defendant s probation has expired, this Court lacks jurisdiction over defendant. The original -6question in controversy is no longer at issue. In re Denial of Request by Humana Hospital Corp., 78 N.C. App. at 640, 338 S.E.2d at 141. The issues involved in this appeal are moot. appeal is dismissed. Dismissed. Judges GEER and JACKSON concur. Report per Rule 30(e). Defendant s
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
