Opinion
No. COA10-92
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgment entered 16 September 2009 by Judge Allen Baddour in Durham County Superior Court. Heard in the Court of Appeals 23 August 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State. Mercedes O. Chut for defendant-appellant.
Durham County No. 04 CRS 49709.
Defendant Desiree Justice appeals from judgment entered upon revocation of probation. For the reasons discussed below, we vacate the judgment.
On 30 May 2006, defendant pled guilty to accessory after the fact to felony child abuse. Judge Ronald L. Stephens sentenced defendant to 23 to 37 months imprisonment, suspended the sentence, and placed defendant on twelve months supervised probation. Special conditions of defendant's probation included: (1) defendant submit to reasonable searches; (2) defendant not use, possess or control any illegal drug or controlled substance unless it has been prescribed by a licensed physician; and (3) defendant supply a breath, urine and/or blood specimen for analysis of the possible presence of a prohibited drug or alcohol.
On 18 May 2007, the trial court entered an "Order on Violation of Probation or on Motion to Modify," which modified the monetary conditions of defendant's probation and extended defendant's term of probation twelve months, from 30 May 2007 until 30 May 2008.
On 7 October 2008, four months after defendant's probation term ended, defendant's probation officer filed a probation violation report alleging that defendant had violated her probation by failing to make monetary payments and testing positive for cocaine. After holding a hearing on 27 October 2008, the trial court entered an "Order on Violation of Probation or on Motion to Modify," which extended the term of defendant's probation for a period of twelve months from 30 November 2009 until 30 November 2010.
On 24 June 2009, defendant's probation officer filed another probation violation report alleging that defendant had violated her probation by, among other things, testing positive for cocaine. A hearing was held on 16 September 2009. The trial court determined defendant willfully violated her probation, revoked defendant's probation and activated her sentence. Defendant appeals.
On appeal, defendant argues: (1) the trial court did not conduct a proper hearing under N.C. Gen. Stat. § 15A-1345; and (2) there was insufficient evidence to support the finding that defendant willfully violated conditions of her probation. Before addressing defendant's arguments, we must determine whether the trial court had subject matter jurisdiction to revoke defendant's probation.
"[S]ubject matter jurisdiction may not be waived, and this Court has not only the power, but the duty to address the trial court's subject matter jurisdiction on its own motion or ex mero motu." Obo v. Steven B., ___ N.C. App. ___, ___, 687 S.E.2d 496, 500 (2009). This Court has stated:
A trial court asserts the "conclusion of law" that it has subject matter jurisdiction when it enters a judgment against a defendant in a criminal case. An appellate court reviews conclusions of law de novo. Further, an appellate court necessarily conducts a statutory analysis when analyzing whether a trial court has subject matter jurisdiction in a probation revocation hearing, and thus conducts a de novo review.
State v. Satanek, 190 N.C. App. 653, 656, 660 S.E.2d 623, 625 (2008) (citing State v. Taylor, 155 N.C. App. 251, 260, 574 S.E.2d 58, 65 (2002), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003)).
A court's jurisdiction to review a defendant's compliance with the terms and conditions of probation is limited by statute. State v. Hicks, 148 N.C. App. 203, 204, 557 S.E.2d 594, 595 (2001). Ordinarily, the sentencing court determines the length of probation a defendant is obligated to serve, up to a maximum of five years. N.C. Gen. Stat. § 15A-1342(a) (2009). A court may extend or otherwise modify a defendant's probation pursuant to N.C. Gen. Stat. 15A-1344(d), which provides:
If a probationer violates a condition of probation at any time prior to the expiration or termination of the period of probation, the court, in accordance with the provisions of G.S. 15A-1345, may continue him on probation, with or without modifying the conditions, may place the defendant on special probation as provided in subsection (e), or, if continuation, modification, or special probation is not appropriate, may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing[.]
N.C. Gen. Stat. 15A-1344(d) (2009) (emphasis added). Therefore, under section 15A-1344(d), a defendant's probation may not be modified after the expiration of the period of probation. See Satanek, 190 N.C. App. at 656, 660 S.E.2d at 625 ("There is no provision in [Section 15A-1344(d)] that allows for the extension of probation after the original term has expired."). In contrast, the court may revoke probation after the expiration of the period of probation provided that, among other things, "[b]efore the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation." N.C.G.S. § 15A-1344(f).
Here, under the terms of the modified judgment entered 18 May 2007, defendant's probationary period expired on 30 May 2008. The trial court, however, modified defendant's probation for the second time on 27 October 2008, five months after defendant's probationary period expired, which is not permitted under section 15A-1344(d). Further, the trial court revoked defendant's probation on 14 December 2009, eighteen months after defendant's probationary period expired, which is permitted only if the State filed a written violation report before the expiration of the period of probation pursuant to section 15A-1344(f). The record fails to show that the State filed its written violation report motion before the expiration of the period of probation. Not only was the trial court without jurisdiction to modify defendant's probation for the second time in October 2008, it also lacked jurisdiction to revoke her probation in September 2009. See Satanek, 190 N.C. App. at 656, 660 S.E.2d at 625 (holding that, because the defendant's period of probation had expired, the trial court lacked jurisdiction to extend the probationary period in the first extension, and thus, it lacked jurisdiction to revoke the defendant's probation in the second extension).
"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) (internal quotation marks omitted). Accordingly, the 14 September 2009 judgment activating defendant's sentence under file number 04 CRS 49709 must be vacated. Our decision renders it unnecessary to address defendant's arguments.
Vacated.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).