State v. Ervin

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1078
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1078 NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Gaston County Nos. 11 CRS 56874, 58352 TIMOTHY WAYNE ERVIN

Appeal by defendant from judgments entered 2 May 2013 by

Judge Yvonne Mims Evans in Gaston County Superior Court. Heard

in the Court of Appeals 26 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State.

J. Edward Yeager, Jr. for defendant-appellant.

HUNTER, Robert C., Judge.

Defendant Timothy Wayne Ervin appeals from the judgments

entered upon revocation of his probation. Defendant contends

the trial court erred by revoking his probation on the grounds

that it failed to make sufficient findings that he had violated

a valid condition of probation. After careful review, we

reverse the judgments revoking defendant’s probation and remand

the matter to the trial court. -2- Background

Defendant entered a guilty plea on 4 October 2011 to one

count of breaking or entering a place of worship and one count

of breaking or entering. The trial court sentenced defendant to

consecutive terms of 19 to 23 and 11 to 14 months imprisonment,

but suspended the sentences and placed defendant on supervised

probation for 36 months. On 31 July 2012, the trial court

modified defendant’s probation, ordered defendant to serve three

months of intensive probation, and added a special term of

probation that defendant not be away from his residence between

6:00 p.m. and 6:00 a.m.

Defendant’s probation officer filed violation reports on 19

December 2012, alleging defendant had violated the special

condition of probation that he “[n]ot be away from [his]

residence during the specified hours as set by the court or

probation officer[,]” and violated the regular condition of his

probation that he “[r]emain within the jurisdiction of the Court

unless granted written permission to leave by the Court or the

probation officer.” All of defendant’s violations were alleged

to have occurred in November 2012. After a hearing on 2 May

2013, the trial court entered judgments finding defendant had

willfully violated the terms and conditions of his probation as -3- alleged in the probation violation reports and activated

defendant’s consecutive suspended sentences. Defendant gave

notice of appeal in open court.

Discussion

Defendant now argues the trial court erred in revoking his

probation and activating his sentences. We agree.

For probation violations occurring on or after 1 December

2011, a trial court may only revoke probation where the

defendant: “(1) commits a new crime in violation of N.C. Gen.

Stat. § 15A-1343(b)(1); (2) absconds supervision in violation of

N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any condition

of probation after serving two prior periods of [confinement in

response to violations] under N.C. Gen. Stat. § 15A-1344(d2).”

State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730

(2013) (citing N.C. Gen. Stat. § 15A-1344(a) (2011)). For all

other probation violations, a trial court may “alter the terms

of probation pursuant to N.C. Gen. Stat. § 15A-1344(a) or impose

a [confinement in response to violations] in accordance with

N.C. Gen. Stat. § 15A-1344(d2),” but the court may not revoke

probation. Id.

Here, defendant’s alleged violations of the terms and

conditions of his probation involved his failure to comply with -4- the curfew terms set out in a special condition of probation and

his failure to remain within the jurisdiction of the court as

required by N.C. Gen. Stat. § 15A-1343(b)(2) (2013). While the

probation officer also stated defendant had “absconded” in

violation of section 15A-1343(b)(3a), this Court has held that

the absconding condition of probation is only applicable for

offenses committed after the effective date of 1 December 2011.

See Nolen, __ N.C. App. at __, 743 S.E.2d at 731. Here, because

defendant’s underlying offense occurred before 1 December 2011,

section 15A-1343(b)(3a) is inapplicable, and defendant’s

probation may not be revoked based on a violation of the

absconding condition. See id. Furthermore, neither of the

alleged violations of the applicable conditions of probation

support revocation of defendant’s probation until he has served

two prior periods of confinement in response to violations.

The record does not show that defendant had served any

prior periods of confinement in response to violations or that

he committed a new crime in violation of section 15A-1343(b)(1).

Accordingly, the trial court erred in revoking defendant’s

probation.

Conclusion -5- We reverse the trial court’s judgments revoking defendant’s

probation and remand this matter to the trial court for the

entry of an appropriate judgment stemming from defendant’s

probation violations, consistent with the provisions of N.C.

Gen. Stat. § 15A-1344.

REVERSED AND REMANDED.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).