An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 
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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 
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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.
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Report per Rule 30(e).