State v Sparks

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA08-319 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2008 STATE OF NORTH CAROLINA v. Caldwell County Nos. 04 CRS 1202 04 CRS 8000 05 CRS 4231 JIMMY DEAN SPARKS, Defendant. Court of Appeals Appeal by defendant from judgments entered 30 November 2007 by Judge Beverly T. Beal in Caldwell County Superior Court. Heard in the Court of Appeals 17 November 2008. Slip Opinion Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State. Carol Ann Bauer for defendant-appellant. GEER, Judge. Defendant Jimmy Dean Sparks appeals from the revocation of his probation and activation of his sentences. Although defendant argues on appeal that the trial court erred in requiring him to proceed pro se during the probation violation hearing, this appeal is now moot since defendant has fully served his sentence and been released. We are, therefore, required to dismiss defendant's appeal. Facts On 6 July 2004, defendant pled guilty to forgery of an instrument and uttering a forged instrument. In a consolidated -2judgment, the trial court sentenced defendant to a term of four to five months imprisonment, but suspended that sentence, placing defendant on supervised probation for 30 months. 2005, defendant substance and pled guilty received a to possession sentence of On 26 January of six a to Schedule eight II months imprisonment, which the trial court also suspended, and defendant was ordered to undergo supervised probation for 30 months. On 8 March 2005, defendant pled guilty to possession of cocaine, and the trial court sentenced defendant to a term of six to eight months, but suspended that sentence as well, placing defendant on 40 months supervised probation. On 24 January 2005, a probation violation report was filed alleging that defendant was in violation of the terms of his probation with respect to the forgery charges. The trial court modified the original judgment on 10 March 2005 and continued defendant on supervised probation. On 27 June 2005, another probation violation report was filed in connection with defendant's conviction for possession of a Schedule II controlled substance. Later, on 13 July 2005, two additional probation violation reports were filed, one with respect to defendant's forgery convictions and the other regarding the possession of cocaine charge. On 8 December 2005, the trial court modified the judgments and continued defendant on supervised probation. On 22 June 2007, defendant's probation officer filed probation violation reports in all three of defendant's cases. The trial court modified the original judgments on 23 August 2007 and continued supervised probation. -3Finally, probation violation reports were filed on 29 October 2007 in all three of defendant's cases. A probation violation hearing was held on 30 November 2007, at which the trial court revoked defendant's probation and sentenced defendant to a presumptive-range term of six to eight months imprisonment and two concurrent terms of four to eight months imprisonment. The trial court refused to release defendant under N.C. Gen. Stat. § 15A-536 (2007), and, consequently, defendant began serving his sentence in the North Carolina Department of Correction on 30 November 2007. Defendant timely appealed to this Court. Discussion The record indicates that defendant began serving his sentence on 30 November 2007, immediately upon revocation of his probation. Although not part of the record on appeal, we take judicial notice of the Department of Correction's records showing that defendant's six-month sentence release. See State v. Cross, ___ N.C. App. ___, ___, 655 S.E.2d 725, 725 (2008) expired (taking on 30 May judicial 2008, notice resulting of in Department his of Correction's records indicating the defendant's date of release from custody). It is a general principle of appellate review that an appellate court "'will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist.'" Id. at ___, 655 S.E.2d at 725 (quoting In re Swindell, 326 N.C. 473, 474, 390 S.E.2d 134, 135 (1990)). See Swanson v. Herschel, 174 N.C. App. 803, 805, 622 S.E.2d 159, 160 -4(2005) ("'A case is "moot" when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.'" (quoting Roberts v. Madison County Realtors Ass'n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996))). As defendant was released from the Department of Correction on 30 May 2007 after completing his sentence, "'the subject matter of this [appeal] has ceased to exist and the issue is moot.'" Cross, ___ N.C. App. at ___, 655 S.E.2d at 725 (quoting Swindell, 326 N.C. at 475, 390 S.E.2d at 135). "[A]n appeal presenting a question which has become moot will be dismissed." Matthews v. N.C. Dep't of Transp., 35 N.C. App. 768, 770, 242 S.E.2d 653, 654 (1978). Consequently, we dismiss defendant's appeal as moot. See Cross, ___ N.C. App. at ___, 655 S.E.2d at 725-26 (dismissing defendant's appeal as moot where defendant had been released from prison prior to appeal being heard). Dismissed. Judges WYNN and ELMORE concur. Report per Rule 30(e).

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