Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.
The defendant was on supervised probation in Gaston County after pleading guilty to two counts of uttering a forged instrument. 24 months into a 30-month period of probation, a probation violation was filed, accusing the defendant of willful failure to pay. The defendant was not represented by counsel at the hearing, and the trial court ultimately extended probation by 12 months. A year later, probation filed a violation report accusing the defendant of numerous violations. An absconding violation was filed soon after. A hearing was held where the defendant’s probation was revoked, and his sentence activated.
On appeal, the defendant argued that the initial extension of his probation was invalid based on a violation of his right to counsel. (1) The State argued that the defendant was not permitted to collaterally attack the underlying judgment. The court disagreed, finding that the defendant sought to challenge the order extending his probation, not the underlying criminal judgment placing him on probation. Because the defendant had no right of appeal from that order, he retained the right to challenge it in the present case.
(2) The trial court failed to conduct a colloquy pursuant to G.S. 15A-1242 to ensure the defendant knowingly, intelligently, and voluntarily waived his right to counsel at the first probation hearing. While the defendant and judge had signed a waiver of counsel form indicating that the defendant waived all counsel, the judge failed to check either box (indicating partial or total waiver of counsel) on the certification section of the form. The certification attests that the G.S. 15A-1242 colloquy with the defendant was completed. This was a substantive error and not a clerical mistake—the trial court only had jurisdiction to revoke probation in the current case if the initial extension was valid, and the initial extension was only valid if the defendant’s right to counsel was honored, so a mistake here spoke directly to the length of the defendant’s probation. While a knowing, voluntary, and intelligent waiver of counsel may be presumed from the defendant’s signature on the waiver form, that presumption will not be indulged where other record evidence contradicts that conclusion. According to the court:
[A]lthough a signed written waiver is generally ‘presumptive evidence that a defendant wishes to act as his or her own attorney,’ we conclude that the written waiver in the instant case is insufficient—notwithstanding the presence of both parties’ signatures—to pass constitutional and statutory muster. Guinn Slip op. at 18 (cleaned up).
Further, the transcript revealed that no waiver of counsel colloquy occurred. Even assuming the signed waiver of counsel form was valid, the trial court still has a duty to conduct the colloquy of G.S. 15A-1242 and its failure to do so was prejudicial error. The trial court’s original order extending probation by 12 months was therefore invalid, as those proceedings violated the defendant’s right to counsel. Accordingly, the trial court lacked jurisdiction at the later probation violation hearing, and the order of revocation was vacated.
Judge Tyson dissented. He would have found that the signed form conclusively established the defendant’s valid waiver of counsel and would have affirmed the trial court’s revocation order.
A Watauga County trial court lacked jurisdiction to revoke the defendant’s probation imposed in two separate cases in other counties, one probationary sentence imposed in Lincoln County and the other in Catawba County. As to the Lincoln County case, the State failed to meet its burden to show that the defendant was properly being supervised in Watauga County as there was no evidence that the probation was imposed in Watauga County, that the defendant violated probation imposed in the Lincoln case while she was in Watauga, or that the defendant resided in Watauga County at any relevant time. The State failed to meet its burden to show the same with respect to the Catawba County case.
The defendant pled guilty to aggravated felony serious injury by vehicle, driving while impaired, and injury to real property. The trial court sentenced the defendant to 29 – 47 months imprisonment and suspended the sentence, placing the defendant on 60 months of supervised probation. The trial court also ordered the defendant to serve 330 days of imprisonment as a condition of special probation.
Defendant began to serve his term of special probation on October 7, 2014, and then served a 26-day term of imprisonment in a separate case. The defendant was released from imprisonment to supervised probation on September 28, 2015. The probation officer filed violation reports on January 23, 2020, February 5, 2020, and February 25, 2020. The trial court determined in a March 10, 2020 hearing that the defendant willfully violated the terms of his probation and activated the defendant’s suspended sentence. The defendant appealed.
The Court of Appeals determined that the trial court lacked subject matter jurisdiction to revoke the defendant’s probation. Pursuant to G.S. 15A-1351(a), the defendant’s total probationary period included his 330-day imprisonment as a condition of special probation. The Court reasoned that, at the latest, the defendant’s probationary period began on November 3, 2014, after he served his 26-day sentence in the other case. Thus, the defendant’s 60-month probationary period would have ended, at the latest, on November 3, 2019. Because the violation reports were all filed after that date, the trial court lacked subject-matter jurisdiction to revoke the defendant’s probation and activate his suspended sentence.
In this probation revocation case that was appealed by a petition for writ of certiorari, the court held that the defendant failed to demonstrate error with respect to the district court’s exercise of subject matter jurisdiction to revoke her probation. On May 5, 2017, the defendant was placed on 12 months of supervised probation pursuant to a conditional discharge plea agreement related to a felony drug charge. On March 4, 2018, the defendant’s probation officer filed a violation report asserting that she had only completed a small fraction of her court-ordered community service hours and had not yet paid in full her court costs and supervised probation fee. At a May 4, 2018, hearing on the violation report, which resulted in the trial court finding a willful violation of probation and entering judgment on the felony drug charge, the defendant did not object to the district court’s jurisdiction and fully participated in the hearing.
The court first addressed its appellate jurisdiction, noting that the defendant’s various attempts to appeal the judgment did not comply with the Rules of Appellate Procedure but deciding to use its discretion to allow the defendant’s petition for writ of certiorari, in part because the issue of the district court’s subject matter jurisdiction to revoke her probation was one of first impression. The court then turned to the merits, first explaining that under G.S. 7A-271(e) “the superior court generally exercises exclusive jurisdiction over probation revocation hearings even when the underlying felony conviction and probationary sentence were imposed through a guilty plea in district court.” The court went on to explain that notwithstanding the statute’s general rule, it further provides as an exception that the district court has jurisdiction over probation revocation hearings when the State and the defendant, using the statute’s term, “consent” to the district court’s jurisdiction. Noting that the term “consent” is not defined in the statute and has not been construed in this context by a North Carolina appellate court, the court rejected the defendant’s argument that it was necessary that her “express consent” appear in the record. Instead, the court held that the term encompasses implied consent and that the defendant’s conduct in this case – fully participating in the hearing without objection and even going so far as to request additional relief from the court during the hearing – constitutes implied consent.
The defendant was serving an active sentence when he pled guilty to other felony charges. The sentencing court imposed two 20 to 24 month sentences, suspended for 36 months on the condition of supervised probation. In the event the defendant violated probation, the two sentences would be run consecutively to the then-existing sentence. In one of the new sentences, the court indicated the probation would run at the expiration of the defendant’s current sentence. The other new sentence did not. The defendant violated probation and the consecutive terms were imposed. On appeal, the defendant complained that the violation report for one of the cases was filed too late—since only one judgment indicated probation was to begin at the expiration of his existing sentence, probation from the other judgment began running concurrently while the defendant was still incarcerated. The court agreed. Under G.S. 15A-1346, probation runs concurrently to any active sentence if not otherwise specified. Because one of the judgments failed to indicate probation ran consecutive to the defendant’s existing sentence, it was concurrent by default and probation began on the day of that judgment. Here, the violation was filed after that probationary period expired, and the trial court lacked jurisdiction to revoke the defendant’s probation. The judgement of revocation in that case was therefore vacated.
The trial court lacked jurisdiction to conduct a probation revocation hearing because the defendant was not provided with adequate notice, including a written statement of the violations alleged. The trial court revoked the defendant’s probation after the defendant made multiple repeated objections to probation. The court rejected the State’s argument that the defendant waived her right to statutory notice by voluntarily appearing before the court and participating in the revocation hearing. Because the defendant was not provided with prior statutory notice of the alleged violations, the trial court lacked jurisdiction to revoke probation. The court went on to note that the trial court is not without recourse to compel a recalcitrant defendant in these circumstances. The violation report could have been filed and an arrest warrant could have been issued to provide the defendant with proper notice. Alternatively, the trial court could have found the defendant in contempt of court. And, regardless of the defendant’s statements and protests, the trial court could have simply ordered the defendant to be accompanied by a law enforcement or probation officer to register and implement probation supervision.
The trial court lacked jurisdiction to revoke the defendant’s probation based on the violations alleged. Here, the defendant did not waive his right to notice of his alleged probation violations and the State failed to allege a revocation-eligible violation. Thus, the trial court lacked jurisdiction to revoke.
The trial court had jurisdiction to revoke the defendant’s probation. The court rejected the defendant’s argument that the trial court in Harnett County lacked jurisdiction to commence a probation revocation hearing because the probation originated in Sampson County. It held: “A trial court located in a county where a defendant resides and violates the terms of her probation is vested with jurisdiction to revoke the defendant’s probation.” The court added however:
In order to avoid disputes, uncertainty, and costly litigation, the better practice for probation officers is to specify on probation violation reports any address relevant to alleged probation violations, such as the last known address of a probationer who has left the jurisdiction without permission or the address of the probation office where a defendant failed to attend a scheduled meeting. Additionally, in a probation violation hearing, the better practice for the State is to introduce direct evidence of any address relevant to an alleged probation violation. In this case, the indirect evidence—sufficient to allow the reasonable inference that Defendant resided in Harnett County when she fled the jurisdiction and violated her probation in Harnett County by failing to meet with her probation officer there—supports the trial court’s presumed findings necessary to support its judgment.
The court also rejected the defendant’s argument that the trial court lacked jurisdiction to revoke her probation because there was no record showing that her probation had been transferred from Sampson County to Harnett County. The court noted that the defendant had offered no authority to support this assertion.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation because the State failed to prove that the violation reports were timely filed. As reflected by the file stamps on the violation reports, they were filed after the expiration of probation in all three cases at issue.
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].”
(1) In this case, which came to the court on a certiorari petition to review the trial court’s 2013 probation revocation, the court concluded that it had jurisdiction to consider the defendant’s claim that the trial court lacked jurisdiction to extend her probation in 2009. (2) The trial court lacked jurisdiction to extend the defendant’s probation in 2009. The defendant’s original period of probation expired on 27 June 2010. On 18 February 2009, 16 months before the date probation was set to end, the trial court extended the defendant’s probation. Under G.S. 15A-1343.2(d), the trial court lacked statutory authority to order a three-year extension more than six months before the expiration of the original period of probation. Also, the trial court lacked statutory authority under G.S. 15A-1344(d) because the defendant’s extended period of probation exceeded five years. Because the trial court lacked jurisdiction to extend probation in 2009, the trial court lacked jurisdiction to revoke the defendant’s probation in 2013.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
The trial court lacked subject matter jurisdiction to revoke the defendant’s probation when it did so after his probationary period had expired and he was not subject to a tolling period.
Because the trial court revoked defendant’s probation before the period of probation expired, the court rejected defendant’s argument that under G.S. 15A-1344(f) the trial court lacked jurisdiction to revoke.
(1) The trial court lacked jurisdiction to revoke the defendant’s probation and activate her suspended sentences where the defendant committed her offenses prior to 1 December 2009 but had her revocation hearing after 1 December 2009 and thus was not covered by either statutory provision—G.S. 15A-1344(d) or 15A-1344(g)—authorizing the tolling of probation periods for pending criminal charges. (2) The trial court erred by revoking her probation in other cases where it based the revocation, in part, on probation violations that were neither admitted by the defendant nor proven by the State at the probation hearing.
A Sampson County superior court judge had jurisdiction to revoke the defendant’s probation where the evidence showed that the defendant resided in that county.
(1) The trial court erred by revoking the defendant’s probation where the State failed to present evidence that the violation report was filed before the termination of the defendant’s probation. As a result, the trial court lacked jurisdiction to revoke. (2) The court declined to consider the defendant’s argument that the trial court had no jurisdiction to revoke his probation in another case because the sentencing court failed to make findings supporting a probation term of more than 30 months. It reasoned that a defendant cannot re-litigate the legality of a condition of probation unless he or she raises the issue no later than the hearing at which his probation is revoked.
The trial court lacked jurisdiction to extend the defendant’s probation after his original probation period expired. Although the probation officer prepared violation reports before the period ended, they were not filed with the clerk before the probation period ended as required by G.S. 15A-1344(f). The court rejected the State’s argument that a file stamp is not required and that other evidence established that the reports were timely filed.
The trial court lacked jurisdiction to revoke the defendant’s probation and activate his sentence. Although the trial court revoked on grounds that the defendant had committed a subsequent criminal offense, such a violation was not alleged in the violation report. Thus, the defendant did not receive proper notice of the violation. Because the defendant did not waive notice, the trial court lacked jurisdiction to revoke.
The trial court lacked jurisdiction to revoke the defendant’s probation on the basis of a violation that was not alleged in the violation report and of which she was not given notice. The violation reports alleged that the defendant violated two conditions of her probation: to “[n]ot use, possess or control any illegal drug” and to “participate in further evaluation, counseling, treatment or education programs recommended . . . and comply with all further therapeutic requirements.” The specific facts upon which the State relied were that “defendant admitted to using 10 lines of cocaine” and that the defendant failed to comply with treatment as ordered. However, the trial court found that the defendant’s probation was revoked for “violation of the condition(s) that he/she not commit any criminal offense . . . or abscond from supervision.”
The court lacked jurisdiction to consider an appeal when the defendant failed to timely challenge an order revoking his probation. If a trial judge determines that a defendant has willfully violated probation, activates the defendant’s suspended sentence, and then stays execution of his or her order, a final judgment has been entered, triggering the defendant’s right to seek appellate review of the trial court’s decision. In this case, the defendant appealed well after expiration of the fourteen-day appeal period prescribed in the appellate rules.
The trial court had jurisdiction to revoke the defendant’s probation. In 2003, the defendant was convicted in Haywood County and placed on probation. In 2007, the defendant’s probation was modified in Buncombe County. In 2009, it was revoked in Buncombe County. Appealing the revocation, the defendant argued that under G.S. 15A-1344(a), Buncombe County was not a proper place to hold the probation violation hearing. The court held that the 2007 Buncombe County modification made that county a place “where the sentence of probation was imposed,” and thus a proper place to hold a violation hearing.
Holding, in a case decided under the old version of G.S. 15A-1344(f), that the trial court lacked jurisdiction to hold a probation revocation hearing where the state failed to make reasonable efforts to notify the defendant and to hold the hearing before the period of probation expired.