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State v. Cross

North Carolina Court of Appeals
Jan 15, 2008
188 N.C. App. 334 (N.C. Ct. App. 2008)

Summary

taking judicial notice of Department of Correction's records indicating the defendant's date of release from custody

Summary of this case from State v. Friend

Opinion


655 S.E.2d 725 (N.C.App. 2008) STATE of North Carolina v. Nathan Aaron CROSS a/k/a Michael Thomas Ferguson. No. COA07-868. Court of Appeals of North Carolina. January 15, 2008

          Appeal by Defendant from judgment entered 12 March 2007 by Judge Laura J. Bridges in County McDowell Superior Court. Heard in the Court of Appeals 13 December 2007.

          Attorney General Roy Cooper , by Assistant Attorney General Terence D. Friedman , for the State.

          Peter Wood, Raleigh, for Defendant.

          ARROWOOD , Judge.

          Nathan Cross (defendant) appeals from judgments revoking probation. We dismiss his appeal as moot.

          In 2003 Defendant was convicted of two charges of larceny of a motor vehicle, and one charge of felonious breaking and entering. He received suspended sentences of five to six months imprisonment in each case, and was placed on supervised probation. Probation violation reports were filed in June 2004. On 12 March 2007 the court revoked Defendant's probation and activated the five to six month sentences previously entered in each case. Defendant was given credit in each case for seventy-one (71) days already served.

          The original judgments provided for consecutive sentences, but upon revocation the sentences were served concurrently. Although not made a part of the Record on Appeal, we take judicial notice of the fact that the North Carolina Department of Correction records indicate that Defendant's sentence expired and he was released from custody on 20 June 2007.

          _________________________

          “ ‘[A]s a general rule this Court will not hear an appeal when the subject matter of the litigation has been settled between the parties or has ceased to exist.’ By reason of the discharge of the [Defendant] from custody, the subject matter of this [appeal] has ceased to exist and the issue is moot." In re Swindell, 326 N.C. 473, 474-75, 390 S.E.2d 134, 135 (1990) quoting Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968) (other citation omitted). See also, e.g., Wilson v. Wilson, 134 N.C.App. 642, 518 S.E.2d 255 (1999) (appeal from expired domestic violence protective order dismissed as moot); In re Cowles, 108 N.C.App. 74, 422 S.E.2d 443 (1992) (juvenile's appeal from training school commitment dismissed as moot where juvenile reached age of 18 years during pendency of appeal).

          “In general, ‘an appeal presenting a question which has become moot will be dismissed.’ " State v. Bowes, 159 N.C.App. 18, 21, 583 S.E.2d 294, 297 (2003) , opinion vacated and dismissed as moot, 360 N.C. 55, 619 S.E.2d 502 (2005) (quoting Matthews v. Dept. of Transportation, 35 N.C.App. 768, 770, 242 S.E.2d 653, 654 (1978) ).

          We conclude that the subject of this appeal is moot and that Defendant's appeal must be

          Dismissed.

          Judges TYSON and JACKSON concur.


Summaries of

State v. Cross

North Carolina Court of Appeals
Jan 15, 2008
188 N.C. App. 334 (N.C. Ct. App. 2008)

taking judicial notice of Department of Correction's records indicating the defendant's date of release from custody

Summary of this case from State v. Friend

dismissing defendant's appeal as moot where defendant had been released from prison prior to appeal being heard

Summary of this case from State v. Sparks

taking judicial notice of Department of Correction's records indicating the defendant's date of release from custody

Summary of this case from State v. Sparks
Case details for

State v. Cross

Case Details

Full title:STATE OF NORTH CAROLINA v. NATHAN AARON CROSS A/K/A MICHAEL THOMAS FERGUSON

Court:North Carolina Court of Appeals

Date published: Jan 15, 2008

Citations

188 N.C. App. 334 (N.C. Ct. App. 2008)
188 N.C. App. 334

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