An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-436
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Alamance County
                                              No. 11 CRS 54334
LARRY STEVENSON AVANT



      Appeal by defendant from judgment entered 12 December 2013

by Judge William R. Pittman in Alamance County Superior Court.

Heard in the Court of Appeals 25 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Ann Stone, for the State.

      Mark Hayes, for defendant-appellant.


      CALABRIA, Judge.


      Larry Stevenson Avant (“defendant”) appeals from a judgment

entered upon the revocation of his probation that activated his

suspended sentence.        We vacate the judgment and remand.

      On 3 April 2012, the trial court sentenced defendant to a

minimum of 11 months and a maximum of 14 months in the custody

of the Division of Adult Correction for selling marijuana.                      The

offense occurred on 7 March 2011.                  Defendant’s sentence         was
                                         -2-
suspended     and   he    was   placed    on    supervised     probation     for   36

months.

    On 17 October 2013, defendant’s probation officer, Michael

T. Haworth (“Haworth”) filed a violation report in defendant’s

case.       Haworth alleged, inter alia, that defendant had tested

positive for marijuana; had failed to obtain prior approval or

to notify him regarding a change in address; that defendant had

absconded     supervision       by   making     his   whereabouts   unknown;       and

that defendant had failed to be at home or answer the door when

Haworth attempted to conduct a home visit.

    At    a   hearing      on   9    December    2013,    defendant     denied     the

willfulness of the alleged violations.                 After hearing testimony

from both Haworth and defendant, the trial court found that

defendant     had   wilfully         violated    several      conditions     of    his

probation.      Specifically, the trial court found that defendant

tested positive for marijuana, failed to notify Haworth of an

address   change,        absconded     supervision       by   failing   to    inform

Haworth of his whereabouts, failed to be at home or answer the

door when Haworth attempted to conduct a home visit, and failed

to pay the Clerk of Superior Court the total amount due on his

court costs.             The trial court revoked defendant’s probation
                                        -3-
and activated his 11 to 14 month suspended sentence.                   Defendant

appeals.

    Defendant argues that the trial court erred by revoking his

probation and activating his sentence based upon a finding that

he absconded from supervision when the offense for which he was

sentenced occurred prior to 1 December 2011, and none of the

other violations permitting the revocation of his probation and

activation of the sentence applied.             We agree.

    The     Justice   Reinvestment       Act    of   2011    limits   the     trial

court’s    discretion   to     revoke   a     defendant’s     probation.       “The

court may only revoke probation for a violation of a condition

of probation under G.S. 15A-1343(b)(1) or G.S. 15A-1343(b)(3a)

except as provided in G.S. 15A-1344(d2).”                    N.C. Gen. Stat. §

15A-1344(a) (2013).       “When a defendant under supervision for a

felony conviction has violated a condition of probation other

than G.S. 15A-1343(b)(1) or G.S. 15A-1343(b)(3a), the court may

impose a period of confinement of 90 consecutive days.                          The

court     may   not   revoke    probation       unless      the   defendant    has

previously received a total of two periods of confinement[.]”

N.C. Gen. Stat. § 15A-1344(d2) (2013).

    In State v. Nolen, ___ N.C. App. ___, 743 S.E.2d 729, 731

(2013), this Court held that the trial court lacked authority
                                          -4-
under   the    Justice    Reinvestment          Act    of   2011    to    revoke     the

defendant’s    probation      and   activate       a   sentence     for    absconding

from supervision when the offense for which the defendant was

sentenced     occurred    prior     to    1     December    2011,    the   violation

occurred after that date, the defendant had not committed a new

crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1), and the

defendant had not served two periods of confinement in response

to the violation pursuant to N.C. Gen. Stat. § 15A-1344(d2).

    In   the    instant    case,     defendant’s        offense     occurred       on   7

March 2011, a date prior to 1 December 2011.                  The State concedes

that the facts in the instant case are indistinguishable from

Nolen, because defendant’s probation violation occurred after 1

December 2011, defendant did not commit a new crime, nor had he

served two periods of confinement in response to a violation

pursuant to     N.C. Gen. Stat. § 15A-1344(d2).                     Therefore, the

judgment must be vacated, and the matter should be remanded for

further proceedings.

    We accordingly vacate the judgment and remand for further

proceedings     and   entry    of    an       appropriate     judgment      or     order

consistent with the provisions of N.C. Gen. Stat. § 15A-1344.

    Vacated and remanded.

    Judges GEER and McCULLOUGH concur.
                         -5-
Report per Rule 30(e).
