713 S.E.2d 793
No. COA10-1310North Carolina Court of Appeals
Filed 7 June 2011 This case not for publication
Robeson County No. 05 CRS 9189.
Appeal by defendant from order entered 16 June 2010 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 23 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant.
CALABRIA, Judge.
Gary Lynn Jacobs (“defendant”) appeals an order requiring him to enroll in Satellite-Based Monitoring (“SBM”) for the remainder of his natural life. Prior to the SBM hearing, defendant did not receive notice of the basis for the North Carolina Department of Correction’s (“the DOC”) preliminary
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determination that he met the criteria for enrollment in the SBM program. We reverse and remand for a new SBM hearing.
On 26 October 2006, defendant entered an Alford plea to the charge of taking indecent liberties with a child. The trial court sentenced defendant to a minimum term of 20 months to a maximum term of 24 months in the custody of the DOC. Defendant did not appeal from the judgment entered against him. On 9 June 2008, defendant completed his sentence and was unconditionally discharged from the DOC.
On 4 September 2008, the DOC sent a letter to defendant directing him to appear at a hearing in Robeson County Superior Court to determine whether he was required to enroll in SBM. The hearing was initially scheduled for 6 October 2008, but was continued multiple times and finally held on 16 June 2010. At the close of the hearing, the trial court found defendant was a recidivist as defined by N.C. Gen. Stat. §14-208.6(2b), and ordered him to enroll in SBM for the remainder of his natural life. Defendant gave oral notice of appeal in open court.
As an initial matter we note that, because an SBM hearing is not a criminal trial or proceeding, oral notice of appeal is insufficient to preserve a defendant’s right to appeal from an SBM order. State v. Brooks, ___ N.C. App. ___, ___, 693 S.E.2d 204, 206 (2010). Accordingly, because defendant did not file a written notice of appeal consistent with N.C. R. App. P. 3(a),
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we must dismiss his appeal. Id. However, recognizing that his oral notice of appeal did not preserve his right to appeal, defendant filed a petition for writ of certiorari with this Court. In the interest of justice, we grant defendant’s petition for writ of certiorari and review the trial court’s SBM order.
Defendant first argues the trial court erred in ordering him to enroll in SBM because the DOC did not provide him with notice of the particular category of N.C. Gen. Stat. § 14-208.40(a) that applied to him or explain the basis for its determination. The State concedes that the DOC failed to provide defendant with adequate notice, requiring reversal and remand for a new SBM hearing. We agree.
Prior to initiating an SBM proceeding for a defendant previously convicted of a reportable offense, the DOC “shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a).” N.C. Gen. Stat. § 14-208.40B(a) (2009). Upon making such a determination,
[T]he district attorney, representing the Department, shall schedule a hearing in superior court for the county in which the offender resides. The Department shall notify the offender of the Department’s determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7.
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N.C. Gen. Stat. § 14-208.40B(b) (2009). This Court has held that “the statute requires notice of two facts: (1) the hearing date and (2) the Department’s determination with respect to N.C. Gen. Stat. § 14-208.40(a).”State v. Stines, ___ N.C. App. ___, ___, 683 S.E.2d 411, 415 (2009). The second requirement “mandates that the Department, in its notice, specify the category set out in N.C. Gen. Stat. § 14-208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion.” Id. at ___, 683 S.E.2d at 418. Where the State fails to give the required notice, the defendant is entitled to a new SBM hearing. Id.
Here, the DOC informed defendant that it had determined that he fell within one of the statutory categories in N.C. Gen. Stat. § 14-208.40(a), and that the SBM hearing was to be held on 6 October 2008. Although the DOC informed defendant that he fell within one of the categories, by failing to inform him of the exact category, the notice did not protect defendant’s right to due process. Accordingly, we reverse the trial court’s SBM order and remand the matter for a new SBM hearing, prior to which defendant must be provided with adequate notice. As this issue is dispositive of this case on appeal, we do not review defendant’s remaining arguments.
Reversed and remanded.
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Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).
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