An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                 NO. COA13-1268
                         NORTH CAROLINA COURT OF APPEALS

                                 Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                        Haywood County
                                                Nos. 11 CRS 53915
CLIFFORD NATHANIEL WARREN                            12 CRS 50517



      Appeal by defendant from judgments entered 7 August 2013 by

Judge Marvin P. Pope in Haywood County Superior Court.                    Heard in

the Court of Appeals 26 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tiffany Y. Lucas, for the State.

      Richard Croutharmel for defendant-appellant.


      HUNTER, Robert C., Judge.


      Defendant      Clifford       Nathaniel     Warren    appeals     from    the

judgments entered based upon the revocation of his probation.

Defendant     contends     the      trial   court   erred       by   revoking   his

probation     on   the    grounds    that   it   failed    to    make   sufficient

findings that he violated a valid condition of probation.                         We

reverse the judgments revoking defendant’s probation and remand

the matter to the trial court.
                                            -2-



                                        Background

    On 24 June 2013, defendant pled guilty to two counts of

obtaining property by false pretenses for offenses committed on

14 and 24 October 2011.             The trial court sentenced defendant to

consecutive terms of 11 to 14 months imprisonment, suspended the

sentences,       and    placed     defendant          on   24     months   of    supervised

probation.

    On     28     June    2013,     a    probation          officer     filed       violation

reports     in    each     case    alleging           three       probation     violations,

including that defendant had failed to report to his probation

officer    as    directed     on    27     and    28       June    2013,   had      absconded

supervision,       and      had     been     untruthful            about      his    contact

information.       On 24 July 2013, the officer filed an additional

violation report and an addendum, alleging that defendant had

admitted to using methamphetamine and had committed new criminal

offenses.

    At the revocation hearing, defendant denied having violated

his probation, and the trial court declined to find that he had

violated    his        probation    based        on    the      new   criminal       charges.

Instead, the trial court revoked defendant’s probation based on

the three violations alleged in the violation reports filed on
                                                -3-
28   June    2013,    and     his     admitted          use    of    methamphetamine,       as

alleged in the 24 July 2013 report.                            Defendant gave written

notice of appeal.1

                                       Discussion

       In   his   sole      argument       on    appeal,       defendant       contends    the

trial court erred by revoking his probation, since he was not

subject to the absconding condition established in N.C. Gen.

Stat. § 15A-1343(b)(3a) (2013) and since the trial court did not

find   any   other        violation    of       a     valid    condition       of    probation

sufficient to support revocation of his probation.                                   The State

concedes     the      trial       court         erred     by        revoking    defendant’s

probation, and we agree.

       Defendant      and    the     State       both     assert      that     the    relevant

circumstances        in    this     case    are       indistinguishable          from    those

addressed in State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729

1
  Defendant’s pro se written notice of appeal does not include
proof of service as required by N.C. R. App. P. 4(a)(2) (2013).
Acknowledging this defect, defendant filed a petition for writ
of certiorari seeking to preserve his right to appellate review.
Although we agree that defendant’s notice of appeal does not
meet the requirements of N.C. R. App. P. 4 for the reason
defendant identifies, we have previously held such a defect is
not fatal when the notice of appeal was timely filed and the
opposing party has participated in the appeal.          State v.
Ragland, ___ N.C. App. ___, ___, 739 S.E.2d 616, 620, disc.
review   denied,  ___   N.C.   ___,  747   S.E.2d   548   (2013).
Accordingly, because defendant’s notice of appeal was timely and
the appeal is properly before us, we dismiss the petition for
writ of certiorari as moot.
                                               -4-
(2013).      In that case, the defendant pled guilty in 2010 and was

placed on probation.               Id. at __, 743 S.E.2d at 729-30.                        A 29

June    2012    violation         report       alleged   that     the       defendant        had

absconded on 15 June 2012, and her probation was revoked in

September 2012, based on an alleged violation of the absconding

condition      and    a    finding      that    she    had    failed       to    satisfy     the

monetary     conditions       of     her    probation.         Id.         On    appeal,     the

defendant      argued      that     the    trial      court    lacked       the        statutory

authority      to    revoke       her      probation     under       the        2011     Justice

Reinvestment         Act     (“JRA”),       because      the    new        JRA     absconding

provision did not apply to her and the monetary violation was no

longer a sufficient basis on which to revoke her probation under

the JRA.       Id.    Citing State v. Hunnicutt, ___ N.C. App. ___, 740

S.E.2d 906 (2013), this Court held that for probation violations

that occurred after the 1 December 2011 effective date of the

JRA, a defendant’s probation could only be revoked for violating

the conditions specified under the JRA, including absconding as

defined in N.C. Gen. Stat. § 15A-1343(b)(3a).                              Nolen, __ N.C.

App. at __, 743 S.E.2d at 731.                       However, defendants placed on

probation for offenses committed before the effective date of

the    JRA   could     not    have      their    probation      revoked          based     on   a

violation of the new absconding condition.                           Id.        As a result,
                                          -5-
this Court held the defendant’s probation could not be revoked

based on the trial court’s finding she had absconded, because

she committed her offenses prior to the effective date of the

JRA.     Id.    In addition, the monetary violation was no longer a

ground    to   revoke      probation      under    the     JRA,    and   this   Court

reversed the judgment revoking probation and remanded the matter

to the trial court.         Id.

       Similarly, in this case defendant pled guilty to offenses

that took place in October 2011, shortly before the effective

date of the JRA, and thus was not subject to the new absconding

condition      set   out    in    the   JRA.       Defendant’s      probation    was

subsequently revoked based on findings that he had absconded, as

well as a finding that he had admitted to using methamphetamine.

We note that the trial court specifically declined to find that

defendant      had   committed      any   new     crimes     and    made   no   other

findings addressing any other grounds for revocation.                      Under the

JRA, the trial court’s finding regarding methamphetamine use is

not sufficient to support a revocation of probation.                       See N.C.

Gen. Stat. § 15A-1343 (2013).                   Accordingly, as in Nolen, we

reverse the judgments revoking defendant’s probation and remand

the matter to the trial court.
                         -6-
REVERSED AND REMANDED.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).
