NO. COA13-775

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v.

TRAVIS ANTONIO LEE,

Defendant.

Sampson County

No. 13CRS54

Appeal by defendant from Judgment entered on or about 2 April 

2013 by Judge W. Douglas Parsons in Superior Court, Sampson County. 

Heard in the Court of Appeals 19 November 2013.

Attorney General Roy A. Cooper, III by Assistant Attorney 

General Andrew O. Furuseth, for the State.

Yoder Law PLLC by Jason Christopher Yoder, for defendantappellant.

STROUD, Judge.

Travis Lee (“defendant”) appeals from the judgment entered on 

or about 2 April 2013 revoking his probation and activating his 

sentence. We remand for correction of the clerical errors in the 

judgment. 

I. Background

In June 2012, defendant was indicted in Harnett County for 

obtaining property by false pretenses, felony larceny of a motor 

vehicle, and felony possession of a stolen motor vehicle. On 24 
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September 2012, defendant pled guilty to larceny of a motor vehicle 

and was sentenced to 10-12 months imprisonment, suspended for 24 

months of supervised probation. On 17 January 2013, defendant’s 

probation officer filed a violation report in Sampson County 

alleging that defendant had violated four conditions of his 

probation: (1) that he report as directed to the supervising 

officer, (2) that he pay all fees owed, (3) that he participate in 

substance abuse treatment through TASC, and (4) that he commit no 

criminal offense. On 2 April 2013, the superior court in Sampson 

County found that defendant had violated his probation as alleged 

in paragraphs one through four of the violation report, revoked 

his probation, and sentenced him to 8-10 months imprisonment.

Defendant filed written notice of appeal to this Court on 12 April 

2013.

II. Subject Matter Jurisdiction

On appeal, defendant contends that the trial court lacked 

jurisdiction because Sampson County was not in a judicial district 

which had jurisdiction over his probation and because he received 

inadequate notice of the State’s allegations against him. We 

disagree.

A. Correct County
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Defendant argues for the first time on appeal that the trial 

court lacked jurisdiction to revoke his probation because Sampson 

County was not in the judicial district where probation was 

imposed, Judicial District 11A, there was no evidence he lived in 

Sampson County, Judicial District 4A, and there was no evidence 

that any of his alleged violations took place in Sampson County.

Under N.C. Gen. Stat. § 15A-1344(a) (2011),

probation may be reduced, terminated, 

continued, extended, modified, or revoked by 

any judge entitled to sit in the court which 

imposed probation and who is resident or 

presiding in the district court district as 

defined in G.S. 7A-133 or superior court 

district or set of districts as defined in 

G.S. 7A-41.1, as the case may be, where the 

sentence of probation was imposed, where the 

probationer violates probation, or where the 

probationer resides.

Defendant fails to note that both his affidavit of indigency 

and the violation report filed by his probation officer list his 

residence as one on County Manor Lane in Dunn, North Carolina. The 

State contends that this address is situated in Sampson County. 

Defendant does not argue on appeal—and did not argue to the trial 

court—that this address is not actually in Sampson County, nor 

that he did not live at that address at the relevant time. 

Therefore, we deem such arguments abandoned. N.C.R. App. P. 28(a).

Accordingly, we conclude that the trial court had jurisdiction 
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over defendant’s probation under N.C. Gen. Stat. § 15A-1344(a)

because he was residing in Sampson County, part of Judicial 

District 4A.

B. Notice

Defendant next argues that the trial court lacked 

jurisdiction because he had inadequate notice that the State 

intended to revoke his probation on the basis of a new criminal 

offense. He contends that “[b]ecause the violation report alleged 

only criminal charges, and not convictions, it cannot be the sole 

basis for revoking probation.”

Under the Justice Reinvestment Act, a defendant’s probation 

is subject to revocation if he violates the normal condition of 

probation that he “[c]ommit no criminal offense in any 

jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1) (2011); N.C. Gen. 

Stat. § 15A-1344(a) (2011). A conviction by jury trial or guilty 

plea is one way for the State to prove that a defendant committed 

a new criminal offense. See State v. Guffey, 253 N.C. 43, 45, 116 

S.E.2d 148, 150 (1960) (“[W]hen a criminal charge is pending in a 

court of competent jurisdiction, which charge is the sole basis 

for activating a previously suspended sentence, such sentence 

should not be activated unless there is a conviction on the pending 

charge or there is a plea of guilty entered thereto.” (emphasis 
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added)). The State may also introduce evidence from which the trial 

court can independently find that the defendant committed a new 

offense. See, e.g., State v. Monroe, 83 N.C. App. 143, 145-46, 

349 S.E.2d 315, 317 (1986), State v. Debnam, 23 N.C. App. 478, 

480-81, 209 S.E.2d 409, 410-11 (1974).

The State is required to give defendant notice “of the 

[probation] hearing and its purpose, including a statement of the 

violations alleged.” N.C. Gen. Stat. § 15A-1345(e)(2011). Thus, 

the relevant piece of information is the violation alleged, not 

the manner of proving the violation. “The purpose of the notice 

mandated by this section is to allow the defendant to prepare a 

defense and to protect the defendant from a second probation 

violation hearing for the same act.” State v. Hubbard, 198 N.C. 

App. 154, 158, 678 S.E.2d 290, 293 (2009).

Here, the violation report specifically alleged that 

defendant violated the condition of probation that he commit no 

criminal offense in that he had several new pending charges which 

were specifically identified, including that “on 12/18/12 the 

defendant was charged with possession of firearm by felon in 

12CR057780 and possess marijuana up to 1/2 oz in 12 CR 057779 in 

Johnston County.” The violation report went on to state that “If 
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the defendant is convicted of any of the charges it will be a 

violation of his current probation.”

Defendant is correct that charges alone are insufficient to 

show that he committed a new criminal offense. See Guffey, 253 

N.C. at 45, 116 S.E.2d at 150. Nevertheless, the issue here is 

notice—i.e., whether the information provided was sufficient “to 

allow the defendant to prepare a defense and to protect the 

defendant from a second probation hearing for the same act.” 

Hubbard, 198 N.C. App. at 158, 678 S.E.2d at 293. Additionally, 

because of the changes effected by the Justice Reinvestment Act, 

we have required that defendants be given notice of the particular 

revocation-eligible violation alleged by the State. See, e.g., 

State v. Tindall, ___ N.C. App. ___, ___, 742 S.E.2d 272, 275 

(2013) (holding that defendant received insufficient notice 

because “defendant did not have notice that her probation could 

potentially be revoked when she appeared at the hearing.”), State 

v. Kornegay, ___ N.C. App. ___, ___, 745 S.E.2d 880, 883 (2013) 

(“Under Tindall, which violation is alleged dictates whether the 

trial court has the jurisdiction to revoke a defendant’s probation 

or not.” (emphasis added)).

Unlike Tindall and Kornegay, the violation report here put 

defendant on notice that the State was alleging a revocation-
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eligible violation, namely that he committed a new criminal

offense. The probation officer specifically alleged in the 

violation report that defendant had violated the condition that he 

not commit any criminal offense. The violation report identified

the criminal offense on which the trial court relied to revoke 

defendant’s probation—possession of a firearm by a felon—and the 

specific county and case file number of that alleged offense. Given 

such notice, defendant was aware that the State was alleging a

revocation-eligible violation and he was aware of the exact 

violation upon which the State relied. Defendant could have denied 

the violation and presented evidence in his own defense had he 

chosen to do so. Therefore, we conclude that the trial court had 

jurisdiction to revoke defendant’s probation for violation of the 

“commit no criminal offense” condition.1

III. Findings of Fact

Defendant next argues that the trial court made inadequate 

findings to support its judgment revoking his probation. We agree 

that the trial court’s written judgment is missing several key 

findings, including findings that, “[u]pon due notice or waiver of 

notice,” defendant admitted the violations and that that defendant 

 

1 Because we conclude that the notice provided was adequate we do 

not address the issue of waiver.
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had violated the condition that he not commit a new criminal 

offense. We conclude that these omissions are clerical errors and 

remand for entry of a corrected judgment.

The form which was used here, “Judgment and Commitment Upon 

Revocation of Probation—Felony,” AOC Form CR-607 Rev. 12-12,

includes five potential findings of fact with various optional 

subsections. Finding 1 addresses the particular probation 

violations alleged against the defendant. Finding 2 addresses 

“due notice,” waiver of notice, and hearing. Finding 3 addresses 

the specific conditions which the court finds that defendant has 

violated. Finding 4 addresses the willfulness and timing of 

violations, and does not require that a box be “checked,” unless 

the subsection is applicable (and here it was not marked, nor 

should it have been). Finding 5 includes the direction: “NOTE TO 

COURT: This finding is required when revoking probation for 

violations occurring on or after December 1, 2011” (emphasis in 

original), gives the Court two optional findings, and at least one 

of these is necessary to revoke probation.

Here, the trial court made only two findings: No. 3(a), which 

was “checked” and Finding 4, which does not require any additional 

notation. The only optional finding on Form AOC-CR-607 that the 

trial court checked was 3(a), where it found that “The condition(s) 
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violated and the facts of each violation are as set forth” in

paragraphs 1-4 of the violation report. By failing to check the 

right boxes, the trial court failed to incorporate the violation 

reports by reference (Finding 1(a)), made no finding that defendant 

admitted the violations (Finding 2), and failed to find a willful 

violation of one of the revocation-eligible conditions under the 

Justice Reinvestment Act (Finding 5). Finding 5 is particularly 

important here because only one of the four alleged violations was 

revocation-eligible. See State v. Jones, ___ N.C. App. ___, ___, 

736 S.E.2d 634, 637-38 (2013) (concluding that “the trial court 

should have checked the box finding that it had the authority to 

revoke defendant’s probation under the Justice Reinvestment Act 

‘for the willful violation of the condition(s) that he/she not 

commit any criminal offense, G.S. 15A–1343 (b)(1), or abscond from 

supervision, G.S. 15A–1343(b)(3a), as set out above.’”).

But in this case, the record clearly supports the grounds, 

reasoning, and authority for the trial court’s order of revocation 

of probation, so any error in failing to check a box on the 

revocation form is clerical only. See id. at ___, 736 S.E.2d at 

637-38 (concluding that the trial court made a clerical error when 

it failed to check the right boxes on the AOC form to revoke 

probation). Defendant admitted the alleged violations through 
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counsel, including that he had been convicted of a new criminal 

offense on 18 December 2012. The trial court found from the bench 

that defendant had admitted the violations. Nevertheless, the 

order must document the findings necessary to the trial court’s

decision to revoke defendant’s probation. See N.C. Gen. Stat. §

15A-1345(e) (2011) (“Before revoking or extending probation, the 

court must, unless the probationer waives the hearing, hold a 

hearing to determine whether to revoke or extend probation and 

must make findings to support the decision and a summary record of 

the proceedings.”); State v. Williamson, 61 N.C. App. 531, 534, 

301 S.E.2d 423, 425 (1983) (noting that due process requires “a 

written judgment by the judge which shall contain (a) findings of 

fact as to the evidence relied on, [and] (b) reasons for revoking 

probation.”). The failure to check the appropriate boxes 

constitutes a clerical error. Jones, ___ N.C. App. at ___, 736 

S.E. 2d at 637-38. Therefore, we remand for correction of the 

clerical errors.

IV. Conclusion

Although we conclude from the current record that the trial 

court had subject matter jurisdiction to adjudicate defendant’s 

alleged probation violations, due to the failure to “check the 

boxes” on the order, the trial court’s written findings are 
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inadequate to support its decision to revoke defendant’s 

probation. Therefore, we remand for the trial court to correct 

the clerical errors in the judgment.

REMANDED.

Judges MCGEE and BRYANT concur.