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    "judges": [
      "Judges CALABRIA and DAVIS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. IBN RAHSHAAN KORNEGAY, Dependant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nIbn Rahshaan Komegay (\u201cdefendant\u201d) appeals from a judgment revoking his probation and activating his sentence. We vacate the judgment of the trial court for lack of jurisdiction and remand.\nI. Background\nOn 17 August 2009, defendant pled guilty to two felony counts of possession with intent to sell and deliver cocaine. As part of a plea agreement, he was placed on supervised probation for thirty months. \u2022 His probationary term was to run at the expiration of his sentence in a prior case.\nOn 6 July 2012, defendant consented to a warrantless search of his home by a probation officer, Officer Johnson. During this search, Officer Johnson found a loaded revolver, a large knife with a brass-knuckle hilt, what he believed to be drugs, and a scale. Defendant\u2019s identification card and clothes were in the same bedroom where Officer Johnson found the revolver and knife.\nSubsequently, the State brought charges against defendant for possession of this contraband, filed two probation violation reports, and requested that the court revoke his probation. The new charges were (1) possession with intent to sell and deliver marijuana and (2) possession of a firearm by a felon. The violation reports alleged that defendant broke three conditions of his probation: (1) that he \u201cnot be in possession of any drug paraphernalia\u201d (original in all caps), (2) that he \u201c[p]ossess no firearm... or other deadly weapon,\u201d and (3) that he \u201c[n]ot use, possess or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it....\u201d\nAt the probation revocation hearing in Pitt County Superior Court, Officer Johnson testified about the contraband that he found within defendant\u2019s home. Defendant did not offer any evidence at the hearing. At the time of the probation hearing, defendant had not been convicted of any of the new charges. Based on Officer Johnson\u2019s testimony, the trial court found that defendant \u201ccommitted a subsequent criminal offense,\u201d revoked defendant\u2019s probation, and activated his sentences in the underlying felonies. Defendant objected to this finding in court and gave oral notice of appeal.\nII. Trial Court Jurisdiction\nDefendant has not raised the issue of jurisdiction in this case. Nevertheless, \u201csubject matter jurisdiction may not be waived, and this Corut has not only the power, but the duty to address the trial court\u2019s subject matter jurisdiction on its own motion or ex mero motu.\" Obo v. Steven B., 201 N.C. App. 532, 537, 687 S.E.2d 496, 500 (2009) (citation omitted).\n\u201cA court\u2019s jurisdiction to review a probationer\u2019s compliance with the terms of his probation is limited by statute.\u201d State v. Hicks, 148 N.C. App. 203, 204, 557 S.E.2d 594, 595 (2001).\nWhere 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. If the court was without authority, its judgment is void and of no effect.\nState v. Gorman,_N.C. App._,_, 727 S.E.2d 731, 733 (2012) (citations, quotation marks, and ellipses omitted).\nRecently, this Court held that where a probationer does not receive notice that the State intends to prove that she violated a condition of probation that could result in the revocation of probation, the trial court does not have jurisdiction to find a violation of that condition. State v. Tindall,_N.C. App._,_, 742 S.E.2d 272, 275, (2013).\nIn Tindall, the probationer, Ms. Tindall, was receiving treatment at a substance abuse facility as required by a plea agreement. Id. at_, 272 S.E.2d at 273. However, Ms. Tindall was \u201ccaught partying\u201d with other residents of the facility. Id. (quotation marks omitted). When speaking with her probation officer about the incident, Ms. Tindall admitted to snorting cocaine. Id. at_, 742 S.E.2d at 273-74. In response, the State filed violation reports alleging that she broke two conditions of her probation: (1) that she \u201c[n]ot use, possess or control any illegal drug\u201d and (2) that she \u201cparticipate in further evaluation, counseling, treatment or education programs ... and comply with all further therapeutic requirements----\u201d Id. at__, 742 S.E.2d at 275. It did not allege that she violated the condition that she commit no criminal offense. See id.\nAt Ms. lindall\u2019s probation revocation hearing, the trial court reviewed the evidence and ruled that she \u201cdid unlawfully willfully without legal justification violate[] the terms and conditions of her probation as alleged in the violation reports, and . . . that she [] committed a subsequent offense while on probation.\u201d Id. at_, 742 S.E.2d at 274. (emphasis added). The trial court revoked her probation and activated her sentence. Id.\nWe noted that:\nPrior to revocation of probation, the court must hold a hearing, \u201cunless the probationer waives the hearing. ...\u201d N.C. Gen. Stat. \u00a7 15A-1345(e) (2011). The State must give the probationer notice of the [probation revocation] hearing and its purpose, including a statement of the violations alleged.\u201d Id. \u201cThe notice, unless waived by the probationer, must be given at least 24 hours before the hearing.\u201d Id. The purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act.\nId. at_, 742 S.E.2d at 274 (citation and quotation marks omitted). Because Ms. Tindall did not receive notice of a violation of the \u201ccommit no criminal offense\u201d condition and she did not waive notice, we concluded that the trial court did not have jurisdiction to consider that violation and \u201cimproperly revoked her probation.\u201d Id. at_, 742 S.E.2d at 275.\nThis holding is significant because under the Justice Reinvestment Act of 2011 it is no longer true that \u201c[any] violation of a valid condition of probation is sufficient to revoke defendant\u2019s probation.\u201d State v. Crowder, 208 N.C. App. 723, 726, 704 S.E.2d 13, 15 (2010) (citation and quotation marks omitted). Under the Justice Reinvestment Act, only when a probationer \u201c[c]ommit[s] [a] criminal offense\u201d or \u201cabscond[s] by willfully avoiding supervision\u201d is his probation subject to revocation, unless he has been subject to two prior periods of \u201cConfinement in Response to Violation\u201d. See N.C. Gen. Stat. \u00a7 15A-1344(a) (\u201cThe court may only revoke probation for a violation of a condition of probation under G.S. 15A-1343(b)(1) or G.S. \u00a7 15A-1343(b)(3a), except as provided in G.S. 15A-1344(d2).\u201d) (emphasis added); N.C. Gen. Stat. \u00a7 15A-1344(d2). A trial court may not otherwise revoke probation simply for a violation of the general requirement that a probationer \u201c[n]ot use, possess, or control any illegal drug. . . .\u201d N.C. Gen. Stat. \u00a7 15A-1343(b) (15) (2011); see N.C. Gen. Stat. \u00a7 15A-1344(a). Thus, although the same conduct could fall under both N.C. Gen. Stat. \u00a7 15A-1344(b)(1) and (b)(15), the potential consequences for violating each condition are quite different. Under Tindall, which violation is alleged dictates whether the trial court has the jurisdiction to revoke a defendant\u2019s probation or not.\nThe present case is indistinguishable from Tindall. We are bound by it and apply it here. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989). Here, the State did not allege that defendant \u201c[c]ommit[ted] [a] criminal offense\u201d in its violation reports. Instead, it alleged that that defendant had (1) been \u201cin possession of [] drug paraphernalia\u201d (original in all caps), (2) \u201c[p]ossess[ed] [a] firearm... or other deadly weapon,\u201d and (3) \u201cuse[d], possessed] or control[ed] [an] illegal drug or controlled substance. ...\u201d Defendant did not receive proper notice that his probation might be terminated for violating \u00a7 1343(b)(1). Yet, the trial court revoked defendant\u2019s probation because he \u201ccommitted a subsequent criminal offense.\u201d\nAs in Tindall, we conclude that the trial court lacked jurisdiction to revoke defendant\u2019s probation. \u201cWhen the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.\u201d State v. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 836 (1993) (citation and quotation marks omitted). Thus, we vacate the trial court\u2019s order revoking defendant\u2019s probation and activating his sentence. We remand for further proceedings as appropriate.\nIII. Conclusion\nIn order to revoke a defendant\u2019s probation, a court must have jurisdiction to do so. To establish jurisdiction over specific allegations in a probation revocation hearing, the defendant either must waive notice or be given proper notice of the revocation hearing, including the specific grounds on which his probation might be revoked. Here, defendant did not waive notice, and the trial court revoked defendant\u2019s probation for violation of a condition not included in the State\u2019s violation reports. Therefore, it did not have jurisdiction to revoke defendant\u2019s probation and activate his sentence. Accordingly, we vacate the trial court\u2019s order revoking defendant\u2019s probation and activating his sentence and remand.\nVACATED and REMANDED.\nJudges CALABRIA and DAVIS concur.\n. Neither that prior judgment nor anything indicating when he might have completed his sentence on the prior conviction was included in the record. Based on the violation reports, it appears that defendant\u2019s probation may have been extended at one point, but there is no order in the record doing so.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III by Assistant Attorney General Lora C. Cubbage, for the State.",
      "Michelle FormyDuval Lynch, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. IBN RAHSHAAN KORNEGAY, Dependant\nNo. COA13-52\nFiled 16 July 2013\nProbation and Parole \u2014 revocation\u2014jurisdiction\u2014notice\nA trial court order revoking defendant\u2019s probation and activating his sentence was vacated and remanded where the trial court lacked jurisdiction because defendant did not receive proper notice that his probation might be terminated. This case was indistinguishable from State v. Tindall (COA 12-1145, 2013). The trial revoked defendant\u2019s probation for committing a subsequent offense, but the violation report alleged only violation of drug and firearms conditions and did not allege a criminal offense.\nAppeal by defendant from judgments entered on or about 27 August 2012 by Judge Wayland J. Sermons, Jr. in Superior Court, Pitt County. Heard in the Court of Appeals 6 June 2013.\nAttorney General Roy A. Cooper, III by Assistant Attorney General Lora C. Cubbage, for the State.\nMichelle FormyDuval Lynch, for defendant-appellant."
  },
  "file_name": "0320-01",
  "first_page_order": 330,
  "last_page_order": 334
}
