State v. Best , 10 N.C. App. 62 ( 1970 )

177 S.E.2d 772 (1970) 10 N.C. App. 62

STATE of North Carolina
v.
Willie BEST.

No. 708SC520.

Court of Appeals of North Carolina.

December 16, 1970.

Atty. Gen. Robert Morgan by Staff Atty. Ernest L. Evans, Raleigh, for the State.

Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant appellant.

PARKER, Judge.

Defendant does not contest the court's findings that he had willfully violated various conditions of his probation during his probationary period. His sole contention is that, no probation violation warrant having been served upon him during the period of his probation, the court thereafter lacked power to order his probation revoked and his prison sentence put into effect. He argues that the language of G.S. § 15-200 required this result. We do not agree.

The statute referred to contains the following:

"§ 15-200. Termination of probation, arrest, subsequent disposition.

"* * * At any time during the period of probation or suspension of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. Any police officer, or other officer with power of arrest, upon the request of the probation officer, may arrest a probationer without a warrant. * * * Upon such arrest, with or without warrant, the court shall cause the defendant to be brought before it in or out of term and may revoke the probation or suspension of sentence, and shall proceed to deal with the case as if there had been no probation or suspension of sentence. If at any time during the period of probation or suspension of sentence a warrant is issued and the defendant is arrested for a violation of any of the conditions of probation or suspension of sentence, or in the event any person is arrested at the instance of a probation officer, the defendant shall be allowed to give bond pending a hearing before the judge of the court. * * *"

Defendant argues that the quoted language of the statute must be interpreted to require that the warrant not only be issued but that it also be actually served on the defendant and he be taken into custody during the probationary period, else the court lacks power to hear the matter. Such a construction, which obviously rewards the defaulting probationer for his skill in eluding the officers, is in our opinion, required neither by reason nor authority. Applied in the present case, such a construction would result in the anomaly that, by the simple expedient of violating the conditions of his probation which required him to report to his probation officer and not to move his place of residence without the officer's consent, defendant could obtain immunity for his violations in all other respects. We do not believe the Legislature intended so strange a result. In our opinion, G.S. § 15-200 authorizes issuance of a probation violation warrant at any time during the period of probation; it does not require that the defendant be apprehended and brought into court for hearing within that time. This construction is consistent with that which our Supreme Court has placed on G.S. § 15-1, which provides a two-year limitation period on misdemeanor cases. The Court in State v. Williams, 151 N.C. 660, 65 S.E. 908, held that an indictment or presentment marks the beginning of the prosecution so as to toll the statute of limitations, even though defendant be apprehended and tried more than two years after the offense was committed.

Our construction of G.S. § 15-200 is also supported by the decision in State v. Pelley, 221 N.C. 487, 20 S.E.2d 850. In that case judgment was entered on 18 February 1935 sentencing defendant to prison. The prison sentence was suspended and defendant placed on probation for a period of five years on certain conditions. On 19 October 1939 a capias was issued and returned marked, "[d]ue search made and defendant not to be found in Buncombe County or the State of North Carolina." Efforts to locate defendant continued. He was arrested on 10 February 1940 by police authorities in Washington, D.C., upon an alias capias issued by the North Carolina Court. He fought extradition and was not brought before the North Carolina Superior Court on the matter of revocation of his probation until January 1942, which was almost two years after expiration of his probationary period. The Superior Court, after hearing evidence, found defendant had violated conditions of his probation and ordered the probation revoked and the prison sentence put into effect. On appeal, our Supreme Court affirmed, and in an opinion by Denny, J., said (p. 498, 20 S.E.2d at p. 857):

"The failure to enter judgment within the five-year period, prescribed in the original judgment, was not due to the lack of diligence on the part of the Court, but was chargeable solely to the conduct of defendant. Therefore, we hold that the Court had not lost jurisdiction of the defendant by reason of the lapse of time and that the Court had power to enter judgment at January Term, 1942, of the Superior Court of Buncombe County."

State v. Pelley, supra, is clear authority that if a probation violation warrant and order of arrest is issued during the probationary period, a valid probation revocation hearing may be held and order entered after the period of probation has expired, at least in situations where the delay is not due to any lack of diligence on the part of the probation authorities or the court. It is true that in Pelley the defendant was arrested out of the State a few days before the probation period expired, while in the present case the defendant was not found and served until after his probation period had expired. However, Pelley does not hold that the arrest would have been invalid if made after expiration of the probationary period. Nor is the holding in Pelley limited, as appellant here contends, only to cases in which the violating probationer flees the State in order to avoid arrest. We see no valid reason why the holding should not also apply to cases in which the violating probationer keeps himself concealed within the State, particularly where, as here, it is a condition of his probation not only that he keep his probation officer informed as to his whereabouts but that he not move at all without the officer's consent.

The order appealed from is

Affirmed.

MALLARD, C. J., and GRAHAM, J., concur.