State v. Harwood, 243 N.C. App. 425 (Oct. 6, 2015)

Because the probation officer filed violation reports after probation had expired, the trial court lacked jurisdiction to revoke the defendant’s probation. The court rejected the State’s argument that the defendant’s period of probation did not begin until he was released from incarceration and thus that the violation reports were timely. The State acknowledged that the trial court failed to check the box on the judgment form indicating that the period of probation would begin upon release from incarceration, but argued that this was a clerical error. The court noted that under G.S. 15A-1346, the default rule is that probation runs concurrently with imprisonment. The court rejected the notion that the trial court’s failure to check the box on the form was a clerical, in part because the trial court failed to do so five times with respect to five separate judgments. Additionally, the court held that if a mistake was made it was substantive not clerical, reasoning: “[c]hanging this provision would retroactively extend the defendant’s period of probation by more than one year and would grant the trial court subject matter jurisdiction to activate [the sentences].”