in the Court of Appeals 25 January 2017.
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.
Wood, for defendant-appellant.
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.
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." 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.
February 2016, defendant's probation officer
("Officer Gibbs") filed a report alleging that
defendant had willfully violated the following conditions of
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 $70.48 AND IS IN
3. Condition of Probation "The defendant shall pay to
the Clerk of Superior Court the monthly supervision fee as
set by law" in that OFFENDER WAS ORDERED TO PAY
SUPERVISION FEES AND AS OF THIS DATE HE HAS PAID [$]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 ...