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Criminal Practice — SBM – Jurisdiction – Grady III Defendant – Civil Practice

Criminal Practice — SBM – Jurisdiction – Grady III Defendant – Civil Practice

Defendant falls within the class of individuals for whom State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) (Grady III), found satellite-based monitoring (SBM) to be unconstitutional. Since defendant had already been sentenced and had already been subject to a “bring-back” procedure under G.S. § 14-208.40B, and since the state failed to invoke the trial court’s jurisdiction with any motion or other pleading, the trial court lacked jurisdiction to order defendant to submit to SBM.

We vacate the trial court’s lifetime SBM order without prejudice to the state’s ability to file an application for SBM.

According to Grady III, the state’s SBM program is unconstitutional with respect to “individuals who are subject to mandatory lifetime [satellite-based monitoring] based solely on their status as a statutorily defined ‘recidivist’ who have completed their prison sentences and are no longer supervised by the State through probation, parole, or post-release supervision.”

Defendant was enrolled in mandatory lifetime SBM based solely on a finding that he was a recidivist, and he is not under any form of post-release supervision. He is thus entitled to relief under Grady III.

If the state wished to reenroll defendant in SBM, it had to proceed in a manner consistent with its statutory authority and procedural obligations. The state failed to do so.

Two statutes confer jurisdiction upon a trial court to enroll a qualifying individual in SBM.

G.S. § 14-208.40A requires the trial court to conduct an SBM hearing “during the sentencing phase” of a criminal proceeding following a conviction. This section is plainly inapplicable because defendant was initially enrolled in the SBM program approximately two and a half years after he was convicted and sentenced.

G.S. § 14-208.40B confers jurisdiction upon a trial court to conduct an SBM hearing “when an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring[.]” The plain language of this statute indicates that it does not apply where there has already been a “determination by a court on whether the offender shall be required to enroll in satellite-based monitoring,” as happened in this case in 2009 when defendant was initially enrolled in SBM following his “bring-back” hearing pursuant to § 14-208.40B(a).

Moreover, our precedent makes clear that the state cannot move for reconsideration of SBM under § 14-208.40B.

Additionally, the state did not validly invoke the court’s jurisdiction to conduct the SBM hearing. The SBM program is “a civil regulatory scheme,” of which SBM hearings and proceedings are part. Yet the state did not file a written motion, application or other pleading. In the absence of any such filing, the state did not actually invoke the trial court’s jurisdiction.

Vacated without prejudice.


(Tyson, J.): As the ratio decidendi of this appeal, we unanimously agree the trial court lacked subject matter jurisdiction. Further analysis or discussion beyond the dispositive determination to vacate without prejudice is obiter dictum.

State v. Billings (Lawyers Weekly No. 011-121-21, 18 pp.) (Valerie Zachary, J.) (John Tyson, J., concurring in the result only) Appealed from Iredell County Superior Court (Joseph Crosswhite, J.) Sonya Calloway-Durham for the state; James Grant for defendant. 2021-NCCOA-306


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