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State v. Johnson

Court of Appeals of North Carolina

July 18, 2017

STATE OF NORTH CAROLINA
v.
CHRISTOPHER MICHAEL JOHNSON

          Heard in the Court of Appeals 25 January 2017.

         Appeal by defendant, by writ of certiorari, from judgment entered 14 March 2016 by Judge Milton Fitch in Currituck County, Currituck County, No. 12 CRS 646 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General W. Thomas Royer, for the State.

          Peter Wood, for defendant-appellant.

          CALABRIA, Judge.

         Christopher Michael Johnson ("defendant") appeals, by writ of certiorari, from a judgment revoking his probation and activating his suspended sentence. After careful review, we conclude that the trial court lacked jurisdiction to revoke defendant's probation based on the violations alleged. Accordingly, we vacate the trial court's judgment and remand for further proceedings.

         I. Background

         On 16 August 2013, defendant entered an Alford plea to two counts of taking indecent liberties with a child. See generally North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162 (1970). These offenses occurred on or about 4 October 2011. According to the plea arrangement, defendant was to "receive an active sentence on one charge, and a probationary type sentence on the second count."[1] For the second count, the trial court sentenced defendant to 16 to 20 months in the custody of the North Carolina Division of Adult Correction but suspended his sentence and placed him on 36 months of supervised probation.

         On 5 February 2016, defendant's probation officer ("Officer Gibbs") filed a report alleging that defendant had willfully violated the following conditions of his probation:

1. "Report as directed by the Court, Commission or the supervising officer to the officer at reasonable times and places . . . " in that
OFFENDER WAS ARRESTED IN VIRGINIA AND FAILED TO REPORT TO THIS OFFICE WITHIN 72 HOURS AFTER ARREST. RELEASE DATE ACCORDING TO JAIL WAS 1/21/16
2.Condition of Probation "The defendant shall pay to the Clerk of Superior Court the 'Total Amount Due' as directed by the Court or probation officer" in that OFFENDER WAS ORDERED TO PAY COURT INDEBTEDNESS BY JUDGE IN SUPERIOR COURT AND AT THIS TIME HE HAS PAID $70.48 AND IS IN ARREARS $454.52
3. Condition of Probation "The defendant shall pay to the Clerk of Superior Court the monthly supervision fee as set by law" in that OFFENDER WAS ORDERED TO PAY SUPERVISION FEES AND AS OF THIS DATE HE HAS PAID [$]104.52 AND IS IN ARREARS [$]815.48. WAS SUPPOSED TO PAY $40 A MONTH
4. Condition of Probation "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that OFFENDER WAS TOLD NOT TO LEAVE THE STATE OF NORTH CAROLINA BY THIS OFFICER UNLESS HE HAD PERMISSION AND ON 1/16/16 AN OFFICER FROM VA BEACH POLICE DEPARTMENT INFORMED ME THAT HE WAS FOUND ASLEEP IN VIRGINIA AND ARRESTED FOR TRESPASSING. ALSO ON 8/8/15 HE WAS CAOUGHT [sic] STAYING AT A ...

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