State v. Bryant, No. COA05-514 (NC 2/21/2006), COA05-514
| Decision Date | 21 February 2006 |
| Docket Number | No. COA05-514,COA05-514 |
| Parties | STATE OF NORTH CAROLINA, v. ANDREA ANTIONETTE BRYANT, |
| Court | North Carolina Supreme Court |
Andrea Antionette Bryant ("defendant") pled guilty to embezzlement on 8 October 2002. She was given a suspended sentence of ten to twelve months imprisonment, and placed on thirty-six months of supervised probation. The conditions of her probation included serving four days in jail, completing community service, paying court costs and attorney's fees, and paying restitution. On 16 January 2003, defendant pled guilty to obtaining property by false pretenses, and was given a suspended sentence of eight to ten months imprisonment, and placed on eighteen months of supervised probation. As a condition of her probation for this conviction, she was ordered to serve one day in jail, and pay restitution and court costs. On 11 May 2004, defendant's probation officer filed violation reports alleging defendant had violated various conditions of both of her probations. A probation violation hearing was held on 24 September 2004 in Durham County Superior Court. At the hearing, defendant admitted to violating the conditions regarding curfew checks and arrearage for restitution, but asked that the court allow her to remain on probation so that she could continue working to better herself and continue making payments towards restitution. The trial court revoked defendant's probation in both cases, and activated her sentences. Defendant appeals from this order.
Defendant first contends the trial court lacked jurisdiction when it revoked her probation for the obtaining property by false pretenses conviction.
In State v. Hicks, this Court stated:
A court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute. . . .
148 N.C. App. 203, 204-05, 557 S.E.2d 594, 595 (2001) (quoting State v. Camp, 299 N.C. 524, 527, 263 S.E.2d 592, 594 (1980)) (citations omitted) (emphasis in original). North Carolina General Statutes, section 15A-1344(f) (2004) provides that probation may be revoked after the probation period has expired, 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.
N.C. Gen. Stat. § 15A-1344(f) (2004) (emphasis added). Therefore, in order to satisfy the requirements of North Carolina General Statutes, section 15A-1344(f), the State must satisfy three conditions: "the probationer must have committed a violation during [her] probation, the State must file a motion indicating its intent to conduct a revocation hearing, and the State must have made a reasonable effort to notify the probationer and conduct the hearing sooner." State v. Cannady, 59 N.C. App. 212, 214, 296 S.E.2d 327, 328 (1982). The burden of establishing the trial court's jurisdiction over a revocation hearing after the probation period has expired is one that rests solely with the State. State v. Moore, 148 N.C. App. 568, 571, 559 S.E.2d 565, 566-67 (2002).
In the instant case, defendant's probation period for the obtaining property by false pretenses conviction expired on 16 July 2004. The violation report alleging violations of her probation conditions for this conviction was filed with the Durham County Clerk of Superior Court on 11 May 2004, and was signed by defendant on 17 May 2004. The violation report stated that a hearing on the charges contained in the report would be held on 7 June 2004 in Durham County Superior Court. This report served to satisfy subsection one of North Carolina General Statutes, section 15A-1344(f).
However, during defendant's probation revocation hearing on 24 September 2004, the trial court made no findings of fact concerning the State's efforts to conduct defendant's revocation hearing prior to the expiration of her probation period on 16 July 2004. The State failed to offer any evidence showing the reasonable efforts that it had made to conduct the hearing prior to the expiration of the probation period, and at no point during the hearing did the State offer evidence of dates on which it attempted to hold hearings prior to 16 July 2004. On appeal, the State contends that statements made by defendant's counsel during the hearing are sufficient to establish reasonable efforts on the part of the State. We disagree. Defendant's counsel stated to the trial court, "Ms. Bryant is the young lady who had been sick for a while with the shingles and was unable to come to court." Arguably this statement could be referring to defendant's absence from a revocation hearing held 7 June 2004, as noticed in the violation report. However, the record does not contain any evidence that the State attempted to hold defendant's probation revocation hearing on 7 June 2004 or any other date prior to the end of her probation period on 16 July 2004. Defense counsel's statement alone is insufficient to establish that the State attempted to conduct the revocation hearing at any point prior to the expiration of defendant's probation period, and in fact counsel's statement could very well be referring to defendant's inability to come to court for a hearing in late July or in August. Without more, we cannot be certain.
As this Court held in State v. Hall, when
the record shows that the trial court did not make any findings (nor is there evidence in the record to support such findings) that the State made reasonable effort to conduct the hearing earlier, we are compelled by State v. Camp to hold that "jurisdiction was lost by the lapse of time and the court had no power to enter a revocation judgment against defendant."
160 N.C. App. 593, 593-94, 586 S.E.2d 561, 561 (2003) (quoting Camp, 299 N.C. at 528, 263 S.E.2d at 595). On appeal, when a record before us "`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.'" Moore, 148 N.C. App. at 570, 559 S.E.2d at 566 (citations omitted). Therefore, as we have found no evidence in the record or revocation hearing transcript indicating the State made reasonable efforts to conduct defendant's revocation hearing prior to the expiration of her probation period, we hold the trial court lacked jurisdiction to conduct the revocation hearing. The trial court's judgment that defendant violated the conditions of her probation for the conviction of obtaining property by false pretenses is arrested and the order activating her sentence is vacated.
Defendant next contends she is entitled to a new probation revocation hearing for the embezzlement conviction based on the fact that, as she alleges, the trial court improperly considered evidence from the obtaining property by false pretenses conviction in revoking her probation for the embezzlement conviction. The violation report for defendant's embezzlement conviction stated that she willfully violated the following terms of her probation: (1) she failed to complete the community service requirement; (2) she violated the condition that she not be away from her residence at certain hours of the day; (3) she failed to pay the restitution ordered; and (4) she failed to pay probation supervision fees. At the revocation hearing, the State informed the court that it would abandon the allegation that she had failed to complete the community service requirement. The defendant then admitted to missing the curfew checks and to owing the court ordered restitution, however she stated that she was making payments.
The violation report for defendant's embezzlement conviction failed to list the dates on which defendant allegedly missed the curfew...
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