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    "judges": [
      "Judges HUNTER, JR., Robert N. and ERVIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RICKY CLAYTON, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nRicky Clayton (\u201cdefendant\u201d) appeals from an order enrolling him in satellite-based monitoring (\u201cSBM\u201d). Because the hearing to determine defendant\u2019s eligibility for SBM and his enrollment in SBM for a period of ten years was not based on a reportable conviction but on a probation violation, we vacate the trial court\u2019s order.\nOn 13 August 2007 in Mecklenburg County, defendant was charged with two counts of statutory rape; one count of statutory sexual offense with a person thirteen years of age; and three counts of taking indecent liberties with a child. On 21 and 28 August and 11 September 2007, defendant submitted to a psychological evaluation conducted by William M. lyson, Ph.D., of Blue Ridge Behavior Systems, Inc. Dr. Tyson prepared a report dated 12 March 2008 in which he concluded, in part, that \u201c[tjhis defendant appears to be a mild risk for a community-based program of rehabilitation. Treatment should be conducted in the context of judicially imposed contingencies. Monitoring and supervision of his activities will be required. The usual practices of probation supervision should be adequate to this purpose.\u201d On 22 April 2008, defendant pled guilty to two counts of indecent liberties with a child and all the other charges were dismissed. The trial court sentenced defendant to two consecutive terms of imprisonment, each with a minimum term of 13 months and a maximum term of 16 months. Defendant\u2019s sentence was suspended and he was placed on probation for 36 months, with the first six months designated as intensive probation. The trial court\u2019s order notes that defendant had been convicted of a \u201creportable conviction\u201d as defined by N.C. Gen. Stat. \u00a7 14-208.6(4). On 19 May 2008, pursuant to N.C. Gen. Stat. \u00a7 14-208.40B, defendant was brought back before the Superior Court, Mecklenburg County to determine his eligibility for SBM (\u201c2008 SBM hearing\u201d). Apparently in reliance on Dr. Tyson\u2019s report or a Department of Correction (\u201cDOC\u201d) \u201crisk assessment\u201d not included in the record on appeal, the State commented that defendant did \u201cnot qualify after the [DOC] assessment!,]\u201d as DOC \u201cdid not find that he was a high risk for re-offending.\u201d The trial court then ordered that defendant \u201cis not subject to electronic monitoring.\u201d At defendant\u2019s request, the trial court transferred defendant\u2019s probation to Lincoln County.\nOn 21 July 2008, defendant was charged with a violation of his probation in Lincoln County. The violation report alleged that since being placed on probation, defendant had accessed an e-mail account which contained several photographs of a nude adult woman. On 4 August 2008, defendant stipulated to the probation violations and the trial court modified the judgments, placing defendant on house arrest with electronic monitoring for 90 days and ordering that there be \u201cno computer equipment in the residence.\u201d\nOn 5 March 2009, defendant appeared in Superior Court, Lincoln County for a hearing which was noticed and scheduled as a probation violation hearing, but at which defendant\u2019s eligibility for SBM was evaluated for a second time (\u201c2009 SBM hearing\u201d). The State argued that the situation had changed since the 2008 SBM hearing in Mecklenburg County, as defendant had violated his probation and the DOC had performed a STATIC 99 assessment of defendant which indicated that he was \u201chigh risk.\u201d Defense counsel argued that Dr. Tyson had determined that defendant was a \u201cmild risk\u201d and, therefore, defendant should not be placed on SBM. At the hearing, the trial court made the following findings:\nAt this point in time, at a hearing May 19th 2008 the Honorable Gentry Caudill found that he was not subject to electronic monitoring. The case was transferred to Lincoln County. Since that time he had a probation violation and the nature of that violation was sexual in nature ....\nThe trial court entered a \u201cJudgment/Order or Other Deposition\u201d which ordered that \u201cdefendant be placed on GPS monitoring for a period of ten years.\u201d Defendant gave notice of appeal in open court.\nWe first address the grounds for appellate review of defendant\u2019s appeal. Recently, this Court in State v. Brooks held \u201cthat oral notice pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court],]\u201d for defendants appealing from a trial court\u2019s order requiring enrollment in an SBM program. - N.C. App. -, \u2014, 693 S.E.2d 204, 206 (2010). \u201cInstead, a defendant must give notice of appeal pursuant to N.C.R. App. P. 3(a) as is proper \u2018in a civil action or special proceeding].]\u2019 \u201d Id. N.C.R. App. P. 3(a) requires written notice of appeal to be filed with the clerk of superior court and copies to be served on all other parties. Defendant failed to comply with N.C.R. App. P. 3(a), as he only gave oral notice of appeal at the 2009 SBM hearing and there is no written notice of appeal in the record, which was served on the State. \u201cThe provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\u201d Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (citations and quotation marks omitted), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006). Therefore, we are compelled to dismiss defendant\u2019s appeal. However, defendant citing State v. Bare, - N.C. App. -, 677 S.E.2d 518 (2009) in his brief, requests that, should we find his \u201coral notice of appeal pursuant to Rule 4(a)(1) of the Rules of Appellate Procedure was not sufficient because [it] is a civil case,\u201d that we treat his brief as a petition for writ of certiorari. We note that this Court\u2019s decision in Bare, which held that North Carolina\u2019s SBM statutes were a civil and regulatory regime rather than punishment, was decided on 16 June 2009. Id. at -, 677 S.E.2d at 524. This Court further explained in State v. Singleton, N.C. App. -, -, 689 S.E.2d 562, 565-66 (2010), which was decided on 5 January 2010, that, \u201cfor purposes of appeal, a SBM hearing is not a \u2018criminal trial or proceeding\u2019 for which a right of appeal is based upon N.C. Gen. Stat. \u00a7 15A-1442 or N.C. Gen. Stat. \u00a7 15A-1444\u201d but jurisdiction to hear appeals from SBM hearings is based on N.C. Gen. Stat. \u00a7 7A-27. Here, defendant\u2019s oral notice of appeal was given on 5 March 2009, more than three months before Bare, ten months before Singleton, and more than a year and two months before this Court made its decision in Brooks on 18 May 2010, holding that appeals taken from SBM proceeding must be in writing. Therefore, defendant at the time of his SBM hearing did not have any indication that notice of appeal pursuant to N.C.R. App. P. 4(a)(1) was improper. Accordingly, \u201c [i]n the interest of justice, and to expedite the decision in the public interest,\u201d Brooks, - N.C. App. at -, 693 S.E.2d at 206, we grant defendant\u2019s request to consider his brief as a petition for writ of certiorari and address the merits of his appeal.\nDefendant first contends and the State concedes that the trial court lacked jurisdiction to order defendant to enroll in SBM for a period of ten years following a probation violation, where the trial court had previously held a SBM hearing and ordered that defendant was not required to enroll in SBM. Even though defendant did not raise the issue of whether the trial court had subject matter jurisdiction at trial, this issue may be raised \u201cfor the first time on appeal.\u201d State v. Reinhardt, 183 N.C. App. 291, 292, 644 S.E.2d 26, 27 (2007) (citation omitted). \u201c[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo.\u201d State v. Black, - N.C. App. -, -, 677 S.E.2d 199, 202 (2009) (citation and quotation marks omitted). This Court has recently stated that\n[j]urisdiction is \u2018[t]he legal power and authority of a court to make a decision that binds the parties to any matter properly brought before it.\u2019 Black\u2019s Law Dictionary 869 (8th ed. 2004). The court must have subject matter jurisdiction, or \u2018[\u00a1jurisdiction over the nature of the case and the type of relief sought,\u2019 in order to decide a case. Id. at 870. \u2018A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.\u2019 Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964). The General Assembly \u2018within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.\u2019 Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941). \u2018Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.\u2019 Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).\nState v. Wooten, 194 N.C. App. 524, 527, 669 S.E.2d 749, 750 (2008), disc. review denied, 363 N.C. 138, 676 S.E.2d 308 (2009).\nN.C. Gen. Stat. \u00a7\u00a7 14-208.40A and 14-208.40B (2009) set forth the procedures for SBM hearings.\nN.C. Gen. Stat. \u00a7 14-208.40A applies in cases in which the district attorney has requested that the trial court consider SBM during the sentencing phase of an applicable conviction. See N.C. Gen. Stat. \u00a7 14-208.40A(a). N.C. Gen. Stat. \u00a7 14-208.40B applies in cases in which the offender has been convicted of an applicable conviction and the trial court has not previously determined whether the offender must be required to enroll in SBM. See N.C. Gen. Stat. \u00a7 14-208.40B(a).\nState v. Kilby, - N.C. App. -, -, 679 S.E.2d 430, 432-33 (2009) (emphasis added). As this SBM determination was not made when defendant was sentenced, it is controlled by N.C. Gen. Stat. \u00a7 14-208.40B, which in pertinent part provides that\n(a) When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Department shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a).\n(b) If the Department determines that the offender falls into one of the categories described in G.S. 14-208.40(a), the district attorney, representing the Department, shall schedule a hearing in superior court for the county in which the offender resides ....\nN.C. Gen. Stat. \u00a7 14-208.40B. During this hearing, the trial court makes the determination as to the offender\u2019s eligibility for SBM. See N.C. Gen. Stat. \u00a7 14-208.40B(c).\nHere, on 19 May 2008, the trial court held defendant\u2019s 2008 SBM hearing pursuant to N.C. Gen. Stat. \u00a7 14-208.40B. Thus, the trial court had \u201cpreviously determined whether the offender must be required to enroll in SBM.\u201d Kilby, N.C. App. at \u2014, 679 S.E.2d at 433; N.C. Gen. Stat. \u00a7 14-208.40B(a). As a result of the 2008 SBM hearing, the trial court did not order defendant to enroll in SBM.\nAlthough there may have been procedural deficiencies in the 2008 SBM hearing and ord'er, this appeal is based upon the order resulting from defendant\u2019s 2009 SBM hearing conducted in Superior Court, Lincoln County on 5 March 2009. The trial court did not have any basis to conduct another SBM hearing, where it had already held an SBM hearing based upon the same reportable convictions in 2008. The record contains no indication that between 19 May 2008 and 5 March 2009 defendant was convicted of another \u201creportable conviction\u201d which could trigger another SBM hearing based upon the new conviction. It appears from the record that defendant was summoned for the 2009 SBM hearing to Superior Court, Lincoln County in relation to a probation violation, and the trial court based the enrollment of defendant in SBM for ten years on his \u201cprobation violation\u201d and the fact that \u201cthe nature of that violation was sexual in nature.\u201d However, a probation violation is not a crime in itself, much less a \u201creportable conviction.\u201d See N.C. Gen. Stat. \u00a7 14-208.6(4). There is no indication in the record that DOC followed the notice requirements of N.C. Gen. Stat. \u00a7 14-208.40B(b), nor did the trial court make the findings of fact required by N.C. Gen. Stat. \u00a7 14-208.40B(c). Therefore, the trial court . did not have jurisdiction to conduct the 2009 SBM hearing or to order defendant to enroll in SBM for a period of 10 years. Wooten, 194 N.C. App. at 527, 669 S.E.2d at 750. The SBM statutes do not provide for reassessment of defendant\u2019s SBM eligibility based on the same reportable conviction, after the initial SBM determination is made based on that conviction. To the contrary, this Court has stated in Kilby that N.C. Gen. Stat. \u00a7 14-208.40B(a) allows the trial court to hold an SBM hearing only where \u201cthe trial court has not previously determined whether the offender must be required to enroll in SBM.\u201d - N.C. App. at -, 679 S.E.2d at 433. Accordingly, we vacate the trial court\u2019s order enrolling defendant in SBM for a period of 10 years. As we have granted defendant the relief he requested, we need not address defendant\u2019s remaining arguments challenging the trial court\u2019s enrollment of defendant in SBM.\nVACATE.\nJudges HUNTER, JR., Robert N. and ERVIN concur.\n. It is not clear how the allegations by the probation officer would amount to a violation of the conditions of defendant\u2019s probation, as the only special conditions that defendant was ordered to observe during his probation were to (1) register as a sex offender; (2) participate in any evaluations or treatments as the trial court ordered; (3) not communicate with, be in the presence of, or be found in or on the premises of the victim of the offense; and (4) not reside in a house with any minor child. However, defendant stipulated to violating his probation.\n. The trial court did not use the form order which is intended for use for SBM hearings, AOC-CR-816, Rev. 12/08, but instead used a general form, AOC-CR-305, Rev. 7/95.\n. It appears that the trial court in the 2008 SBM hearing did not adhere to the procedural mandates in N.C. Gen. Stat. \u00a7 14-208.40B. There is no indication in the record that the trial court made any of the findings of fact required by N.C. Gen. Stat. \u00a7 14-208.40B(c). Further, the trial court may have considered Dr. Tyson\u2019s psychological evaluation report as a DOG \u201crisk assessment\u201d in its evaluation of defendant\u2019s eligibility for SBM pursuant to N.C. Gen. Stat. \u00a7 14-208.40B(c). However, the State did not appeal from the 2008 SBM order denying its request for SBM enrollment, so we have no jurisdiction, to consider the 2008 SBM order. N.C.R. App. 10(b)(1). In addition, the State makes no argument on appeal that the order from the 2008 SBM hearing was in error.",
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    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RICKY CLAYTON, Defendant\nNo. COA09-987\n(Filed 3 August 2010)\n1. Appeal and Error\u2014 oral notice of appeal insufficient \u2014 satellite-based monitoring hearing \u2014 certiorari\nDefendant at the time of his satellite-based monitoring hearing did not have any indication that his oral notice of appeal was improper; however in the interest of justice and to expedite the decision in the public interest, the Court of Appeals granted defendant\u2019s request to consider his brief as a petition for writ of certiorari and addressed the merits of his appeal.\n2. Satellite-Based Monitoring \u2014 probation violation \u2014 jurisdiction\nThe trial court lacked jurisdiction to order defendant to enroll in satellite-based monitoring (SBM) for a period of ten years following a probation violation where the trial court had previously held an SBM hearing and ordered that defendant was not required to enroll in SBM.\nAppeal by defendant from order entered on or about 5 March 2009 by Judge James W. Morgan in Superior Court, Lincoln County. Heard in the Court of Appeals 10 December 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Peter A. Regulski, for the State.\nRobert W. Ewing, for defendant-appellant."
  },
  "file_name": "0300-01",
  "first_page_order": 324,
  "last_page_order": 330
}
