An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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
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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
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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
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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).