by Defendant from order entered 6 August 2018 by Judge Lisa
C. Bell in Mecklenburg County No. 16CRS237763 Superior Court.
Heard in the Court of Appeals 2 October 2019.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kristin J. Uicker, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender David W. Andrews, for the Defendant.
Tiquan K. Summers appeals from an order dismissing his case
from Mecklenburg County Superior Court on the basis of lack
November 2016, officers arrested Defendant for embezzlement
of $1, 284.00 from his employer.
April 2017, Defendant and the prosecutor entered into a
deferred prosecution agreement in district court whereby
Defendant signed a document stipulating to the facts as
presented by the prosecutor. Pursuant to that agreement, the
district court judge placed Defendant on probation for a
period of 24 months.
months later, in December 2017, Defendant's probation
officer filed a report alleging that Defendant had violated
the conditions of his probation. On 27 April 2018, following
a hearing on the matter, the district court entered an order
revoking Defendant's probation, the effect of which
allowed the State to pursue prosecution. However, though the
State had not yet restarted its prosecution of Defendant, he
immediately filed a notice of appeal to superior court from
hearing on the matter, the superior court dismissed the
appeal, ruling that the superior court did not have
jurisdiction. Defendant seeks review with our
Court. After careful review, we affirm.
defendant has been charged with a low level felony or a
misdemeanor, the defendant and prosecutor can agree that
prosecution be deferred and the defendant be placed on
probation. See N.C. Gen. Stat. § 15A-1341(a1)
(2017). Typically, under a deferred prosecution, the
defendant signs an agreement admitting to the facts of the
crime alleged; however, he is not actually entering a plea of
guilty. See State v. Ross, 173 N.C.App. 569, 573,
620 S.E.2d 33, 37 (2005). If the defendant fails to comply
with the terms of the agreement, the prosecutor is free to
reinstate charges. See State v. Courtney, __ N.C.
__, __, 831 S.E.2d 260, 270 (2019) ("A prosecutor may
reinstate charges . . . if a defendant fails to comply with
the terms of a deferred prosecution agreement."). Where
the charges are so reinstated, the defendant is free, though,
to plead "not guilty," notwithstanding that he has
previously admitted to the facts of the crime. Ross,
supra. But where a defendant chooses to plead "not
guilty," the State may be able to use the
defendant's admissions in the agreement as evidence in
the trial. N.C. Gen. Stat. § 8C-1, Rule 801(d) (2017)
(out-of-court statement of a party opponent is generally
the district court revoked Defendant's probation,
determining that Defendant had violated the terms of the
deferred prosecution agreement. Unlike most probation
revocations, this revocation did not result in the activation
of any sentence, as Defendant had not yet even been
prosecuted. Notwithstanding, Defendant appealed the district
court's order to superior court.
conclude that the General Assembly has not provided an appeal
of right where probation has been revoked in a deferred
prosecution context. Specifically, the General Assembly has
provided that "when a district court judge, as a result
of a finding of a violation of probation, activates a
sentence or imposes special probation, the defendant may
appeal to the superior court for a de novo
hearing." N.C. Gen. Stat. §15A-1347(a) (2018). But
in the deferred prosecution context, no sentence is activated
nor any special probation conditions imposed when probation
is revoked. Rather, the effect of a revocation in this
context is merely that the State is now free to prosecute:
there is not yet any final judgment. See State v.
Edgerson, 164 N.C.App. 712, 714, 596 S.E.2d 351, 353
(2004) ("Defendant's sentence was neither activated
nor was it modified to 'special probation' . . .
Defendant therefore has no right to appeal."). A
defendant has ...