Opinion
No. 07-666.
Filed March 4, 2008.
Forsyth County Nos. 00CRS21374 04CRS38557-64.
On writ of certiorari from judgments entered 14 March 2005 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 11 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General Gregory P. Roney, for the State. Don Willey for Defendant.
Robert Dustin Kearns ("Defendant") appeals from eight judgments revoking his probation and activating suspended prison sentences totaling sixty-six to eighty-two months. Defendant asserts that the trial court was without subject matter jurisdiction to revoke his probation because the period of his probation in each case had expired before the trial court entered its judgments. The State concedes that Defendant's assertion is correct and asks us to vacate the judgments. From the record before us, we agree with the parties and conclude that the judgments and commitments entered upon revocation of probation must be vacated. On 19 April 2000, Defendant pled guilty in Davie County to one count of felony larceny. Judge Mark E. Klass sentenced Defendant to one term of ten to twelve months imprisonment, suspended the sentence, and placed Defendant on probation for four years. Defendant's case was subsequently transferred to Forsyth County for supervision of his probationary sentence and was assigned case number 04 CRS 38557.
On 7 June 2000, Defendant pled guilty in Davie County to six counts each of felonious breaking or entering and felony larceny. In three judgments, Judge Richard L. Doughton sentenced Defendant to three consecutive terms of eleven to fourteen months imprisonment. On 21 August 2000, Defendant pled guilty in Forsyth County to seventeen counts each of felonious breaking or entering and felony larceny. Judge L. Todd Burke consolidated the convictions into four judgments. In three of the judgments, Judge Burke sentenced Defendant to consecutive terms of nine to eleven months in prison, to run concurrently with the sentences imposed by Judge Doughton. In the fourth judgment, Judge Burke imposed a suspended sentence of nine to eleven months and placed Defendant on probation for three years. Judge Burke specified that the period of probation was to commence when Defendant was released from prison. The suspended sentence was imposed in case number 00 CRS 21374.
On 25 October 2000, Defendant pled guilty in Rowan County to ten counts of felonious breaking or entering, one count of safecracking, and one count of felony larceny. Judge Sanford L.Steelman, Jr., consolidated the convictions into seven judgments. In each judgment, Judge Steelman imposed a suspended sentence of eight to ten months and placed Defendant on probation for three years. None of the judgments specified that the period of probation in any case was to begin when Defendant was released from prison. Later, these cases were transferred to Forsyth County for supervision of Defendant's probationary sentences and were assigned case numbers 04 CRS 38558 through 04 CRS 38564.
On 3 March 2005, Judge Ronald E. Spivey modified Defendant's probation in each of Defendant's Forsyth County cases, ordering Defendant to serve six months of electronic house arrest at Defendant's parents' residence.
One week later, Defendant's probation officer filed violation reports in each case, alleging that Defendant had failed to report to his parents' residence to begin house arrest as ordered. Judge Spivey held a hearing on the violation reports on 14 March 2005. Defendant proceeded pro se and admitted the violation alleged in the reports. Judge Spivey found that Defendant had willfully violated his probation, revoked Defendant's probation, and activated his sentences in each case.
On 20 April 2006, this Court granted Defendant's petition for writ of certiorari to review the judgments and commitments entered upon revocation in case numbers 04 CRS 38557 through 04 CRS 38564. This Court did not grant certiorari to review the judgment and commitment entered upon revocation in case number 00 CRS 21374.
"A court's jurisdiction to review a probationer's compliance with the terms of his probation is limited by statute." State v.Hicks, 148 N.C. App. 203, 204, 557 S.E.2d 594, 595 (2001). Pursuant to N.C. Gen. Stat. § 15A-1346:
(a) Commencement of Probation. — Except 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 subject during that period.
(b) Consecutive and Concurrent Sentences. — If a period of probation is being imposed at the same time a period of imprisonment is being imposed or if it is being imposed on a person already subject to an undischarged term of imprisonment, the period of probation may run either concurrently or consecutively with the term of imprisonment, as determined by the court. If not specified, it runs concurrently.
N.C. Gen. Stat. § 15A-1346 (2005). "At any time prior to the expiration or termination of the probation period, the court may after notice and hearing and for good cause shown extend the period of probation up to the maximum allowed under G.S. 15A-1342(a) and may modify the conditions of probation." N.C. Gen. Stat. § 15A-1344(d) (2005). "The probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation." Id.
The court may revoke probation after the expiration of the period of probation 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) (2005).
The record shows that the 19 April 2000 judgment in Forsyth County case number 04 CRS 38557 imposed a four-year probationary period and began to run on the date the sentence was imposed. Nothing in the record indicates that the probationary period was extended before the initial period expired in April 2004. The violation report was filed on 10 March 2005, well after the probationary period had expired. Thus, the trial court was without jurisdiction to enter its judgment revoking Defendant's probation in case number 04 CRS 38557.
In Forsyth County case numbers 04 CRS 38558 through 04 CRS 38564, the record shows that Defendant was already subject to a term of imprisonment when the 25 October 2000 judgments imposing suspended sentences were entered. Since none of the judgments specified that the probationary period was to begin at the expiration of Defendant's term of imprisonment, the three-year probationary period began to run on the date the sentences were imposed. Nothing in the record indicates that the probationary period was extended before the initial period expired in October 2003. The violation reports were filed 10 March 2005, well after the probationary period had expired. Thus, the trial court was without jurisdiction to enter its judgments revoking Defendant's probation in case numbers 04 CRS 38558 through 04 CRS 38564. "`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 judgments in Forsyth County case numbers 04 CRS 38557 through 04 CRS 38564 are vacated. Because we vacate the judgments, we need not reach Defendant's remaining argument.
Vacated.
Judges TYSON and GEER concur.
Report per Rule 30(e).