{ "id": 4278304, "name": "STATE OF NORTH CAROLINA v. ETHAN MILES HIGH, Defendant", "name_abbreviation": "State v. High", "decision_date": "2013-11-05", "docket_number": "No. COA12-1549", "first_page": "330", "last_page": "337", "citations": [ { "type": "official", "cite": "230 N.C. App. 330" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "559 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2002, "pin_cites": [ { "page": "566" }, { "page": "570" }, { "page": "566", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367316 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0568-01" ] }, { "cite": "557 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "595", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364809 ], "year": 2001, "pin_cites": [ { "page": "204-05", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0203-01" ] }, { "cite": "727 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "600 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 435193 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "625" }, { "page": "656" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ga-app/267/0899-01" ] }, { "cite": "190 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158791 ], "year": 2008, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0653-01" ] } ], "analysis": { "cardinality": 645, "char_count": 14901, "ocr_confidence": 0.725, "pagerank": { "raw": 5.571636649604248e-08, "percentile": 0.35007427073933656 }, "sha256": "dca843ec3db4a8502509062d01ad1b07c495662b0b2d959726e1ad8b7af02520", "simhash": "1:806dc21e3667c4f6", "word_count": 2441 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and DILLON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ETHAN MILES HIGH, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the trial court lacked jurisdiction to extend defendant\u2019s period of probation, we arrest judgment and vacate the order modifying probation and imposing sentence.\nOn 21 July 2008, defendant pled guilty to six counts of breaking or entering a motor vehicle and, in a consolidated judgment, was sentenced to two consecutive terms of six to eight months each. Both sentences were then suspended, resulting in a split sentence of thirty days imprisonment followed by 24 months of supervised probation. Defendant\u2019s probation expiration date was 20 July 2010. .\nOn 1 March 2010, defendant\u2019s probation officer prepared two probation violation reports. The first report alleged defendant violated curfew twelve times within three months, tested positive for cocaine after taking a court-ordered drug test, had been found guilty of possession of marijuana and underage drinking on 18 July 2009, and was in arrears for court costs and restitution. The second report repeated all the allegations of the first report and in addition, alleged that defendant failed to complete community service and was in arrears on payment of probation supervision fees. Both reports were signed and dated 1 March 2010 by the probation officer and Deputy Clerk of Superior Court; however, neither report bore a time stamp with the date of filing. On 20 September 2010, the trial court, based on the 1 March 2010 reports, found that defendant had violated his probation. Defendant\u2019s probation period was modified and extended by an additional 24 months.\nOn 22 June 2011, defendant\u2019s probation officer filed two new probation violation reports in the office of the Clerk of Superior Court. Each report alleged defendant failed to report for scheduled office appointments, was in arrears, and had absconded supervision.\nOn 3 August 2011, the trial court modified defendant\u2019s probation according to the 22 June 2011 probation violation reports. Defendant was ordered to pay $130 and $20 per month, per judgment, respectively. Defendant was also ordered to serve thirty days in jail, which could be served on the weekends at the probation officer\u2019s discretion.\nOn 9 March 2012, defendant\u2019s probation officer again filed in the office of the Clerk of Superior Court two probation violation reports. Each report alleged defendant was in arrears, had absconded supervision, and had four charges pending against him.\nDefendant\u2019s probation violation hearing was held on 6 August 2012 in New Hanover County Superior Court. As defendant was incarcerated at the time of the hearing, he appeared via video for his first appearance. When the trial court asked whether defendant wanted an attorney, defendant responded that he \u201cbelieved I have a lawyer for the case.\u201d The trial court found that public defender Walter Smith had been appointed to represent defendant on separate charges, and ordered Smith to be re-appointed for the pending violations. Defendant then stated that if he \u201cdidn\u2019t have one [a lawyer], I would just waive my right.\u201d The trial court then accepted defendant\u2019s sworn written waiver of counsel.\nAfter waiving counsel defendant admitted to violating his probation by absconding to Florida after being evicted from his home. The trial court revoked defendant\u2019s probation due to his admissions and activated his sentences. Defendant then questioned the trial court as to what the activating of his sentences meant. The trial court responded \u201c[t]hat means your probation\u2019s been revoked and your active sentence has been invoked in the Department of Correction]] . . . .\u201d Defendant then asked the trial court if his sentences could \u201cran [sic] consecutive,\u201d which was denied.\nDefendant wrote a note from jail stating that he wished to appeal his case:\nyes my name is Ethan M. High and I wish to file for appeal for my felony probation case I was just sentenced to. In Supreme Court, [sic] My sentence was two 6-8 suspended sentences.\nThis note was dated 6 August 2012 and was filed with the New Hanover County Superior Court on 8 August 2012. Appellate counsel was thereafter appointed to represent defendant. However, recognizing that his note does not comply with the Rules of Appellate procedure governing notices of appeal and court designation, defendant has filed and served a petition for a writ of certiorari with his brief.\nUnder the North Carolina Rules of Appellate Procedure,\n[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. \u00a7 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.\nN.C.R. App. P. 21(a)(3) (2013).\nDefendant made a handwritten statement on 8 August 2012 without the assistance of counsel, stating:\nyes my name is Ethan M. High and I wish to file for appeal for my felony probation case I was just sentenced to. In Supreme Court, [sic] My sentence was two 6-8 suspended sentences.\nDefendant\u2019s statement, purporting to be a notice of appeal, does not meet the requirements of Rule 4 of the Rules of Appellate Procedure for an appeal in a criminal case.\n(a) Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by\n(1) giving oral notice of appeal at trial, or\n(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days....\n(b) The notice of appeal required to be filed and served . . . shall designate the . . . court to which appeal is taken....\nN.C.R. App. P. 4(a-b) (2013).\nHere, defendant\u2019s notice of appeal was timely but lacked both proper notice and court designation. Defendant acknowledges that these required elements were omitted, but points to his lack of counsel. Defendant requests that his petition for writ of certiorari be granted because of his good faith efforts in making a timely appeal and because his appeal has merit. We agree and grant defendant\u2019s petition for writ of certiorari.\nOn appeal, defendant raises the following issues: (I) whether the trial court had subject matter jurisdiction to revoke defendant\u2019s probation; and (II) whether defendant\u2019s waiver of the right to counsel was knowing and voluntary or in compliance with N.C. Gen. Stat. \u00a7 15A-1242.\nI.\nDefendant first argues that the trial court did not have subject matter jurisdiction to revoke his probation. Specifically, defendant contends that the trial court erred in entering an order of revocation and extending defendant\u2019s probation after the expiration of his original probation period in violation of N.C. Gen. Stat. \u00a7 15A-1344(f). We agree.\nA claim that the trial court lacks subject matter jurisdiction presents a question of law which is reviewed de novo. State v. Satanek, 190 N.C. App. 653, 656, 600 S.E.2d 623, 625 (2008). An appellate court conducts a statutory analysis when determining whether a trial court has subject matter jurisdiction in a probation revocation hearing and thus conducts a de novo review. Id. at 656,600 S.E.2d at 625. The issue of a court\u2019s jurisdiction over a matter may be raised at any time, even on appeal or by a court sua sponte. State v. Gorman, _N.C. App. _, _, 727 S.E.2d 731, 733 (2012).\nHere, in the judgment appealed, the trial court extended defendant\u2019s probation period pursuant to N.C.G.S. \u00a7 15A-1344(f):\n(f) The court may extend, modify, or revoke probation after the expiration of the period of probation if all of the following apply:\n(1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation.\n(2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of the period of probation.\n(3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked.\n(4) If the court opts to extend the period of probation, the court may extend the period of probation up to the maximum allowed under G.S. 15A-1342(a).\nN.C.G.S. \u00a7 15A-1344(f) (2011) (emphasis added).\nWhen a sentence has been suspended and defendant placed on probation on certain named conditions, the court may, at any time during the period of probation, require defendant to appear before it, inquire into alleged violations of the conditions, and, if found to be true, place the suspended sentence into effect [pursuant to] G.S. 15A-1344(d) (Supp. 1979). But the State may not do so after the expiration of the period of probation except as provided in G.S. 15A-1344\u00ae.\nState v. Hicks, 148 N.C. App. 203, 204-05, 557 S.E.2d 594, 595 (2001) (citations omitted).\nDefendant\u2019s period of probation was extended by the trial court on 20 September 2010, after the original period expired on 20 June 2010. The State argues that the language of N.C.G.S. \u00a7 15A-1344(f) has been met becauseN.C. Gen. Stat. \u00a7 15A-101.1(7)(a) does not require a file stamp to establish the filing date of a document such as a probation report:\n(7) \u201cFiling\u201d or \u201cfiled\u201d means:\na. When the document is in paper form, delivering the original document to the office where the document is to be filed. Filing is complete when the original document is received in the office where the document is to be filed.\nN.C.G.S. \u00a7 15A-101.1(7)(a) (2011). The State further argues that a time stamp is not necessary to establish a time of filing because this requirement, as stated in State v. Moore, 148 N.C. App. 568, 559 S.E.2d 565 (2002), has been supplanted by N.C.G.S. \u00a7 15A-101.1(7)(a). We disagree.\nIn State v. Moore, defendant was charged with violating her probation and ordered to continue on probation and serve a split sentence of 120 days incarceration. Moore, 148 N.C. App. at 569, 559 S.E.2d at 566. Defendant appealed, arguing that the trial court lacked jurisdiction because the probation violation reports upon which the trial court relied lacked time stamps showing that the time and date of filing was within defendant\u2019s original period of probation. Id. This Court held that the State failed to meet its burden in showing that the extension of defendant\u2019s probation period was timely filed.\nIn a criminal case . . . North Carolina requires the State to prove jurisdiction beyond a reasonable doubt. In the absence of a file stamped motion or any other evidence of the motion\u2019s timely filing as required by N.C.G.S. \u00a7 15A-1344C0C1) the trial court is without jurisdiction. On appeal, when 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.\nId. at 570, 559 S.E.2d at 566 (emphasis added) (citations and internal quotation omitted).\nThe State argues that the signature and date of the Clerk of Superior Court on the probation reports should be considered as \u201cany other evidence\u201d of filing. However, because the signature and date on the March 2010 violation reports (the reports critical to defendant\u2019s appeal) do not bear the file stamp, and the subsequent violation reports bear a file stamp on the same date as the signature and notarization of the Clerk of Superior Court, what the State urges as \u201cany other evidence\u201d constitutes a lack of evidence of filing. Therefore, even assuming we viewed the signature and date of the Deputy Clerk of Superior Court on the reports to be some evidence of filing, it is not sufficient to meet the jurisdictional requirement. Under these facts, the lack of a file stamp on the March 2010 reports was fatal to jurisdiction.\nMoreover, our Court recently found a lack of jurisdiction due to the absence of a filing stamp on a probation violation report in State v. Mullet, NO. COA12-862, 2013 N.C. App. LEXIS 38 (N.C. App. 2013). In Mullet, defendant appealed from judgments revoking his probation on grounds that the trial court lacked subject matter jurisdiction to revoke his probation after the probationary period had expired. Id. This Court agreed with defendant.\nIn this case, the State has failed to prove the trial court\u2019s jurisdiction beyond a reasonable doubt. Section 15A-1344(f)(l) requires that the violation reports must be filed before the period of probation expires. Although the violation reports in this case are signed by the probation officer, a deputy clerk of court, and defendant, none of those signatures verify that the reports were timely filed. The reports are not file stamped, nor is there other evidence in the record indicating that the reports were actually filed within the period of probation. Without a file stamp, or other evidence beyond a reasonable doubt that the reports were timely filed, the trial court lacked jurisdiction to revoke defendant\u2019s probation. Accordingly, we vacate the judgments revoking defendant\u2019s probation.\nId. at *3-4 (citation omitted). Consequently, we hold that the State failed to satisfy the requirements of N.C.G.S. \u00a7 15A-1344(f) and that the trial court lacked jurisdiction over defendant.\nIn light of our conclusion, other arguments on appeal need not be reached. Accordingly, the trial court\u2019s judgment that defendant violated terms of his probation is arrested and the order modifying the terms of his probation and sentencing is vacated.\nJudgment arrested and sentences vacated.\nJudges STEPHENS and DILLON concur.\n. Both reports bear defendant\u2019s signature, dated 18 March 2010, acknowledging receipt and understanding of the violation reports and the directive to appear in court. The hearing date on the forms is 29 March 2010.\n. The trial court acknowledged and sought to clarify defendant\u2019s request before denying it: \u201c [tjhat\u2019s what the judge that sentenced you \u2014 you\u2019re asking if you can run it concurrently, and I do not do that because to do so would be to reward bad behavior. That\u2019s the judgment of the Court.\u201d\n. We note that while Mullet is an unpublished opinion by this Court, Mullet is on point with the facts in the instant case.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney GeneralRoy Cooper, by Assistant Attorney General Jason R. Rosser, for the State.", "Assistant Public Defender Brendan ODonnell, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ETHAN MILES HIGH, Defendant\nNo. COA12-1549\nFiled 5 November 2013\nProbation and Parole \u2014 lack of jurisdiction \u2014 judgment arrested\u2014 order vacated\nThe trial court lacked jurisdiction to extend defendant\u2019s period of probation. Judgment was arrested and the order modifying probation and imposing sentence was vacated.\nAppeal by defendant from judgments entered 6 August 2012 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 14 August 2013.\nAttorney GeneralRoy Cooper, by Assistant Attorney General Jason R. Rosser, for the State.\nAssistant Public Defender Brendan ODonnell, for defendant-appellant." }, "file_name": "0330-01", "first_page_order": 340, "last_page_order": 347 }