On writ of certiorari to review judgment dated 11 October 2000
by Judge Beverly T. Beal in Mecklenburg County Superior Court.
Heard in the Court of Appeals 12 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Emery E. Milliken, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
GREENE, Judge.
Dennis Lee Wingate (Defendant), by writ of certiorari, appeals
a judgment dated 11 October 2000 revoking his probation and
entering an active sentence on his 19 January 2000 guilty plea to
perjury.
On 19 January 2000, Defendant pled guilty to perjury and was
sentenced to a minimum term of 21 months and a maximum term of 26
months. The trial court suspended Defendant's sentence and placed
him on supervised probation for 36 months. Pursuant to the trial
court's judgment suspending sentence, Defendant was required to:
keep scheduled appointments with a probation officer; commit no
criminal offense; remain within his county of residence unless
granted written permission to leave by his probation officer;
complete fifty hours of community service; be in his place ofresidence between the hours of 6 p.m. and 6 a.m.; not use, possess,
or control any illegal drug or controlled substance; and
participate in any counseling, treatment, or education program as
directed by the probation officer. In addition, the trial court
imposed monetary conditions on Defendant's suspended sentence and
ordered him to pay a total amount of $2,231.00, including: $231.00
in costs; a $1,500.00 fine due to Cabarrus County; a $100.00
community service fee; and $400.00 in attorney's fees.
On 28 July 2000, Catherine Andre (Andre), Defendant's
probation officer, filed a violation report alleging Defendant had:
violated the monetary conditions of his probation; failed to keep
scheduled appointments; failed to participate in an evaluation,
counseling, treatment or education program as directed by Andre;
tested positive for cocaine use on four different occasions;
violated his curfew on four occasions; left his county of residence
without Andre's permission; and been held in a jail in
Chesterfield, South Carolina, on 19 July 2000 for driving while
license revoked and providing fictitious information.
On 11 October 2000, the trial court held a probation violation
hearing and Defendant admitted the violations but argued “drug
addiction . . . kept him from meeting his obligations.” The trial
court found the violations contained in the report had been
admitted and were willful. Thereafter, the trial court revoked
Defendant's probation and activated his sentence. Both in court
and in its written order, the trial court recommended that “as a
condition of work release if granted[, Defendant] pay monies owedin [the 19 January 2000] judg[]ment suspending sentence.”
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The dispositive issue is whether the trial court erred in
recommending that if work release were granted, Defendant pay
monies owed under the judgment suspending sentence.
Initially we note Defendant failed to object to the trial
court's recommendation that if work release were granted, Defendant
pay the amounts ordered under the 19 January 2000 judgment and
therefore has not preserved the issue for appellate review. N.C.R.
App. P. 10(b)(1). Nevertheless, in order to prevent manifest
injustice to Defendant, we address Defendant's argument pursuant to
Rule 2 of the North Carolina Rules of Appellate Procedure.
See
N.C.R. App. P. 2 (Rules of Appellate Procedure may be suspended to
“prevent manifest injustice to a party”).
When an active sentence is imposed, a trial court is permitted
to recommend to the Secretary of the Department of Correction that
restitution or reparation be imposed as a condition of attaining
work-release privileges. N.C.G.S. § 148-33.2(c) (1999). The
Secretary of the Department of Correction is “not required to
follow the trial court's recommendation.”
State v. Lambert, 40
N.C. App. 418, 420, 252 S.E.2d 855, 857 (1979). “Even though [the
trial court's] recommendations . . . are not binding,” the trial
court is not permitted to make unsupported recommendations.
State
v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560,
aff'd per
curiam, 318 N.C. 502, 349 S.E.2d 576 (1986). Thus, the trial
court's recommendation should “be in accordance with the applicableprovisions of G.S. 15A-1343(d) and Article 81C of Chapter 15A of
the General Statutes.” N.C.G.S. § 148-33.2(c).
Within statutory
limitations, the trial court's recommendation “for restitution or
restoration to the aggrieved party as a condition of attaining
work-release privileges” should fulfill the purpose of
“rehabilitation and not additional penalty or punishment, and the
sum ordered or recommended must be reasonably related to the
damages incurred.”
State v. Killian, 37 N.C. App. 234, 238, 245
S.E.2d 812, 815 (1978). Our courts have held that a trial court is
permitted to recommend as a condition to work release: “restitution
to a party injured by criminal activity,”
Lambert, 40 N.C. App. at
420-21, 252 S.E.2d at 857; restitution for attorney's fees,
State
v. Alexander, 47 N.C. App. 502, 502-03, 267 S.E.2d 396, 396 (1980);
the imposition of costs,
see id.; and the costs of the defendant's
keep,
see Killian, 37 N.C. App. at 239, 245 S.E.2d at 816. The
trial court, however, is prohibited from recommending the
imposition of a fine because “a fine is not 'restitution or
reparation' within the meaning of [N.C. Gen. Stat. § 148-33.2(c)].”
Alexander, 47 N.C. App. at 503, 267 S.E.2d at 396.
In this case, the judgment suspending sentence imposed as
monetary conditions: $231.00 in costs; a $1,500.00 fine due to
Cabarrus County; a $100.00 community service fee; and $400.00 in
attorney's fees. Upon revocation of Defendant's probation and
activation of his sentence, the trial court was permitted to
recommend Defendant pay, as a condition to work release if granted,
the $231.00 in costs and the $400.00 in attorney's fees. Providedthe community service fee had been incurred by the State and
constituted damages as a result of Defendant's commission of the
crime, instead of an additional penalty or punishment, the trial
court was permitted to recommend Defendant pay community service
fees as a condition to work release.
(See footnote 1)
The trial court, however,
was not permitted to recommend the imposition of a $1,500.00 fine
as a condition to work release. Accordingly, we modify the trial
court's judgment by striking that portion recommending the payment
of a $1,500.00 fine,
see Alexander, 47 N.C. App. at 503, 267 S.E.2d
at 396, and remand for the trial court to determine if the
community service fee was a cost actually incurred by the State.
Modified and remanded.
Judges McGEE and CAMPBELL concur.
Footnote: 1