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Criminal Practice  – Probation Revocation – Subject Matter Jurisdiction – Criminal Contempt – Notice & Opportunity to Be Heard

Because the trial court did not indicate otherwise on the judgment form, defendant’s probation in case number 06 CRS 51521 ran concurrently with the active sentence he was serving in another case. Since the probation violation report was filed after the probation term ended, the trial court lacked subject matter jurisdiction to revoke defendant’s probation.

We vacate the trial court’s order revoking defendant’s probation in 06 CRS 51521. We reverse the trial court’s criminal contempt order and judgment. Defendant makes no argument concerning the revocation of probation in case number 06 CRS 51515; therefore, this judgment remains in effect.

The trial court held defendant in criminal contempt for shouting foul language within the hearing of the court. However, there is no record of a summary proceeding taking place or the conduct in question, other than the written order entered the day after the alleged incident. There also is no evidence that the trial court afforded defendant the opportunity to respond to the charge or for defendant to present reasons not to impose a sanction.

The fact that the trial court expressly struck the provision of the form order indicating defendant was given notice and opportunity to be heard is proof, if anything, that defendant was not offered the opportunity to be heard, and the state points us to no evidence to the contrary. As such, we conclude the criminal contempt order was facially deficient.

State v. Tincher (Lawyers Weekly No. 011-191-19, 13 pp.) (Toby Hampson, J.) Appealed from Randolph County Superior Court (Julia Lynn Gullett, J.) David Gore for the state; Michael Casterline for defendant. N.C. App.

 


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