State v. Barber ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-396
Filed: 20 October 2015
Forsyth County, No. 11CRS061384
STATE OF NORTH CAROLINA
v.
COLT LEWIS BARBER
Appeal by Defendant from judgment entered 11 April 2014 by Judge Martin B.
McGee in Forsyth County Superior Court. Heard in the Court of Appeals 12 October
2015.
Attorney General Roy A. Cooper, III, by Assistant Attorney General B.
Carrington Skinner, IV, for the State.
Margaret C. Lumsden, for the Defendant.
DILLON, Judge.
Colt Lewis Barber (“Defendant”) appeals from a judgment upon the revocation
of his probation. Because the trial court lacked jurisdiction to revoke Defendant’s
probation based on absconding, we reverse and remand.
On 10 September 2012, a jury found Defendant guilty of possession of a firearm
by a felon, with an offense date of 16 November 2011. The trial court sentenced
STATE V. BARBER
Opinion of the Court
Defendant to twelve to fifteen months of imprisonment, suspended the sentence, and
placed Defendant on thirty-six months of supervised probation.
On 21 October 2013, Defendant’s probation officer filed a violation report
alleging that Defendant violated his probation in various ways: (1) failing to complete
a substance abuse treatment program; (2) testing positive for cocaine; (3) failing to
report as directed to his probation officer; (4) failing to notify his probation officer of
his change of address; and (5) not making himself available for supervision and not
making his whereabouts known.
On 11 April 2014, a probation revocation hearing was held in the trial court.
Defendant, through counsel, denied willfully violating the terms of his probation,
with the exception of failing to report as directed on one occasion. The probation
officer testified that he was unaware of Defendant’s whereabouts from August of 2013
until late October that same year.
The trial judge found that Defendant had willfully violated the five conditions
listed on the violation report. He determined that revocation was warranted based
upon “absconding” despite the exact term not being used in paragraph five of the
violation report. The trial court revoked Defendant’s probation and imposed
judgment activating the suspended sentence. Defendant appealed.
Defendant contends, and the State concedes, that the trial court erred in
revoking his probation. Based on this Court’s holding in State v. Nolen, ___ N.C. App.
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STATE V. BARBER
Opinion of the Court
___, ___, 743 S.E.2d 729, 730-31 (2013), we agree that the trial court lacked the
authority to revoke defendant’s probation due to the constraints enacted by the
Justice Reinvestment Act of 2011 (“JRA”). Specifically, the “absconding condition” in
the JRA, see N.C. Gen. Stat. § 15-1443(b)(3a) (2013), is “applicable only to offenses
committed on or after 1 December 2011[.]” Id. In the present case, the underlying
offense occurred on 16 November 2011. Accordingly, the trial court did not have the
authority to revoke Defendant’s probation for “absconding” under N.C. Gen. Stat.
§ 15-1443(b)(3a).
REVERSED AND REMANDED.
Chief Judge McGEE and Judge HUNTER, JR., concur.
Report per Rule 30(e).
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