An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1268
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Haywood County
Nos. 11 CRS 53915
CLIFFORD NATHANIEL WARREN 12 CRS 50517
Appeal by defendant from judgments entered 7 August 2013 by
Judge Marvin P. Pope in Haywood County Superior Court. Heard in
the Court of Appeals 26 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Tiffany Y. Lucas, for the State.
Richard Croutharmel for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Clifford Nathaniel Warren appeals from the
judgments entered based upon the 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 violated a valid condition of probation. We
reverse the judgments revoking defendant’s probation and remand
the matter to the trial court.
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Background
On 24 June 2013, defendant pled guilty to two counts of
obtaining property by false pretenses for offenses committed on
14 and 24 October 2011. The trial court sentenced defendant to
consecutive terms of 11 to 14 months imprisonment, suspended the
sentences, and placed defendant on 24 months of supervised
probation.
On 28 June 2013, a probation officer filed violation
reports in each case alleging three probation violations,
including that defendant had failed to report to his probation
officer as directed on 27 and 28 June 2013, had absconded
supervision, and had been untruthful about his contact
information. On 24 July 2013, the officer filed an additional
violation report and an addendum, alleging that defendant had
admitted to using methamphetamine and had committed new criminal
offenses.
At the revocation hearing, defendant denied having violated
his probation, and the trial court declined to find that he had
violated his probation based on the new criminal charges.
Instead, the trial court revoked defendant’s probation based on
the three violations alleged in the violation reports filed on
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28 June 2013, and his admitted use of methamphetamine, as
alleged in the 24 July 2013 report. Defendant gave written
notice of appeal.1
Discussion
In his sole argument on appeal, defendant contends the
trial court erred by revoking his probation, since he was not
subject to the absconding condition established in N.C. Gen.
Stat. § 15A-1343(b)(3a) (2013) and since the trial court did not
find any other violation of a valid condition of probation
sufficient to support revocation of his probation. The State
concedes the trial court erred by revoking defendant’s
probation, and we agree.
Defendant and the State both assert that the relevant
circumstances in this case are indistinguishable from those
addressed in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729
1
Defendant’s pro se written notice of appeal does not include
proof of service as required by N.C. R. App. P. 4(a)(2) (2013).
Acknowledging this defect, defendant filed a petition for writ
of certiorari seeking to preserve his right to appellate review.
Although we agree that defendant’s notice of appeal does not
meet the requirements of N.C. R. App. P. 4 for the reason
defendant identifies, we have previously held such a defect is
not fatal when the notice of appeal was timely filed and the
opposing party has participated in the appeal. State v.
Ragland, ___ N.C. App. ___, ___, 739 S.E.2d 616, 620, disc.
review denied, ___ N.C. ___, 747 S.E.2d 548 (2013).
Accordingly, because defendant’s notice of appeal was timely and
the appeal is properly before us, we dismiss the petition for
writ of certiorari as moot.
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(2013). In that case, the defendant pled guilty in 2010 and was
placed on probation. Id. at __, 743 S.E.2d at 729-30. A 29
June 2012 violation report alleged that the defendant had
absconded on 15 June 2012, and her probation was revoked in
September 2012, based on an alleged violation of the absconding
condition and a finding that she had failed to satisfy the
monetary conditions of her probation. Id. On appeal, the
defendant argued that the trial court lacked the statutory
authority to revoke her probation under the 2011 Justice
Reinvestment Act (“JRA”), because the new JRA absconding
provision did not apply to her and the monetary violation was no
longer a sufficient basis on which to revoke her probation under
the JRA. Id. Citing State v. Hunnicutt, ___ N.C. App. ___, 740
S.E.2d 906 (2013), this Court held that for probation violations
that occurred after the 1 December 2011 effective date of the
JRA, a defendant’s probation could only be revoked for violating
the conditions specified under the JRA, including absconding as
defined in N.C. Gen. Stat. § 15A-1343(b)(3a). Nolen, __ N.C.
App. at __, 743 S.E.2d at 731. However, defendants placed on
probation for offenses committed before the effective date of
the JRA could not have their probation revoked based on a
violation of the new absconding condition. Id. As a result,
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this Court held the defendant’s probation could not be revoked
based on the trial court’s finding she had absconded, because
she committed her offenses prior to the effective date of the
JRA. Id. In addition, the monetary violation was no longer a
ground to revoke probation under the JRA, and this Court
reversed the judgment revoking probation and remanded the matter
to the trial court. Id.
Similarly, in this case defendant pled guilty to offenses
that took place in October 2011, shortly before the effective
date of the JRA, and thus was not subject to the new absconding
condition set out in the JRA. Defendant’s probation was
subsequently revoked based on findings that he had absconded, as
well as a finding that he had admitted to using methamphetamine.
We note that the trial court specifically declined to find that
defendant had committed any new crimes and made no other
findings addressing any other grounds for revocation. Under the
JRA, the trial court’s finding regarding methamphetamine use is
not sufficient to support a revocation of probation. See N.C.
Gen. Stat. § 15A-1343 (2013). Accordingly, as in Nolen, we
reverse the judgments revoking defendant’s probation and remand
the matter to the trial court.
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REVERSED AND REMANDED.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).