Opinion
No. COA10-871
Filed 1 February 2011 This case not for publication
Appeal by defendant from judgments entered 23 March 2010 by Judge Milton F. Fitch, Jr. in Chowan County Superior Court. Heard in the Court of Appeals 10 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. James H. Monroe for defendant-appellant.
Chowan County Nos. 07 CRS 50545, 07 CRS 51015.
Edward Devonne Wiggins ("defendant") appeals from judgments entered 23 March 2010 after the trial court found that defendant violated the conditions of his probation. After careful review, we dismiss defendant's appeal.
Background
On 1 October 2007, defendant was indicted for felony possession of cocaine, driving with an expired motor vehicle registration, and driving without a seat belt (07 CRS 50545). On 11 February 2008, defendant was indicted for felony possession of cocaine, possession with intent to sell or deliver cocaine, maintaining a vehicle for the purpose of keeping and selling controlled substances, resisting a public officer, and possession of drug paraphernalia (07 CRS 51015). On 29 April 2008, defendant pled guilty to two counts of felony possession of cocaine and the State dismissed the remaining charges listed in 07 CRS 50545 and 07 CRS 51015.
The trial court imposed a presumptive-range sentence of six to eight months imprisonment for each conviction, but suspended defendant's sentence and placed him on 36 months of supervised probation. On 5 February 2010, defendant's probation officer filed a violation report in which it was alleged that defendant had violated the terms of his probation by not adhering to his curfew, failing to make court ordered payments to the clerk of superior court, and committing crimes for which there were pending charges. After a hearing, the trial court determined that defendant had violated "a valid condition of probation[,]" and, consequently, revoked defendant's probation and activated his suspended sentence. Defendant gave notice of appeal in open court.
Discussion
Defendant's sole argument on appeal is that the trial court did not have subject matter jurisdiction due to a fatal defect in the underlying indictment for case number 07 CRS 51015. Consequently, defendant argues, the trial court could not revoke defendant's probation and activate his suspended sentence.
"When a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation . . . the defendant may appeal under G.S. 7A-27." N.C. Gen. Stat. § 15A-1347 (2009). Pursuant to N.C. Gen. Stat. § 7A-27(b) (2009), an appeal "[f]rom any final judgment of a superior court . . . lies of right to the Court of Appeals." However, in appealing an order activating a suspended sentence, this Court is limited to determining whether (1) defendant breached a condition of probation, and (2) whether the conditions breached were unreasonable. State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971).
In the present case, defendant alleges a fatal defect present on the face of the original indictment. It is well established that "[a] defendant on appeal from an order revoking probation may not challenge his adjudication of guilt." State v. Cordon, 21 N.C. App. 394, 397, 204 S.E.2d 715, 717 (1974). "Questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is . . . an impermissible collateral attack." Noles, 12 N.C. App. at 678, 184 S.E.2d at 410.
"[O]ur Supreme Court has explained that `[w]hile it is true that a defendant may challenge the jurisdiction of a trial court, such challenge may be made in the appellate division only if and when the case is properly pending before the appellate division.'" State v. Jamerson, 161 N.C. App. 527, 529, 588 S.E.2d 545, 547 (2003) (quoting State v. Absher, 329 N.C. 264, 265 n. 1, 404 S.E.2d 848, 849 n. 1 (1991)). Consequently, this appeal is not properly before this Court and must be dismissed. Id.
Dismissed.
Chief Judge MARTIN and Judge
THIGPEN concur. Report per Rule 30(e).