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Criminal Practice — Probation Revocation – Moot – Sentence Served


State v. Posey (Lawyers Weekly No. 011-254-17, 10 pp.) (Chris Dillon, J.) (Valerie Zachary, J., dissenting) Appealed from Cabarrus County Superior Court (W. Erwin Spainhour, J.) N.C. App.

Holding: Where defendant has already served his reactivated sentence, his appeal is moot. As to collateral consequences, the only part of the trial court’s judgment which could have any future detrimental effect is the finding that defendant was in willful violation of his probation, a finding that defendant does not challenge. Clearly, the trial court acted within its authority in entering its finding of willfulness, notwithstanding that it may have erroneously applied G.S. § 15A-1340.16(d)(12a). Since defendant will not suffer future collateral consequences stemming from the trial court’s error in revoking his probation, we conclude that defendant’s appeal is moot.



(Zachary, J.) The trial court’s revocation judgment was entered only upon a finding that defendant had absconded supervision. However, the trial court lacked the statutory authority to revoke defendant’s probation on the basis of absconding; as a result, the revocation judgment was erroneous as a matter of law.

Should this erroneous judgment remain in place, it could subject defendant to future adverse collateral legal consequences (having his probation revocation serve as basis for an aggravating factor in a hypothetical future prosecution). For these reasons, the instant appeal is not moot, and the revocation judgment should be vacated.

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