Appeal by defendant from judgments entered 9 July 2001 by
Judge Clarence W. Carter in Forsyth County Superior Court. Heard
in the Court of Appeals 22 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General Kay
Linn Miller Hobart, for the State.
Samuel L. Bridges for defendant-appellant.
MARTIN, Judge.
Defendant pled guilty on 26 October 1999 to charges of
possession of cocaine with intent to sell and deliver, sale of
cocaine, delivery of cocaine, and maintaining a dwelling for the
keeping of controlled substances. The court consolidated the
convictions into two judgments and imposed sentences of a minimum
term of 15 months and a maximum term of 18 months in each judgment.
The court suspended the sentences and placed defendant on
supervised probation for 36 months.
On 9 March 200l, defendant's probation officer executed
violation reports alleging defendant violated the monetary
condition of probation and the special condition of probation
requiring her to attend and comply with counseling at CENTERPOINT. At the conclusion of a hearing on 9 July 2001, the court found that
defendant willfully and without lawful excuse committed the alleged
violations. The court revoked probation and activated the
sentences, ordering them to run consecutively. Defendant appealed.
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Defendant first argues that the evidence is insufficient to
support a finding that defendant willfully violated probation and
that the court erred by failing to make findings of fact showing it
considered defendant's evidence of inability to pay. The
assignment of error upon which this argument is based states that
the court erred “in that it revoked the probation of the defendant
without sufficient evidence in the record indicating that defendant
committed willful violations of her probation.” The assignment of
error does not state that the court erred by failing to make
findings of fact showing it considered defendant's evidence.
Therefore, only the first part of defendant's contention is
presented by an assignment of error and is properly before us for
review.
See Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729
(1991).
To revoke probation “[a]ll that is required . . . is that the
evidence be such as to reasonably satisfy the judge in the exercise
of his sound discretion that the defendant has willfully violated
a valid condition of probation or that the defendant has violated
without lawful excuse a valid condition upon which the sentence was
suspended.”
State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476,
480 (1967). Proof beyond a reasonable doubt is not necessary.
State v. Tozzi, 84 N.C. App. 517, 353 S.E.2d 250 (1987). The
defendant has the burden of showing excuse or lack of willfulness;
otherwise, evidence of failure to comply is sufficient to support
a finding that the violation was willful or without lawful excuse.
State v. Crouch, 74 N.C. App. 565, 328 S.E.2d 833 (1985). A single
violation is sufficient to revoke the defendant's probation.
State
v. Freeman, 47 N.C. App. 171, 266 S.E.2d 723,
disc. review denied,
301 N.C. 99, 273 S.E.2d 304 (1980).
The evidence shows: defendant was required to pay a total of
$65.00 per month to satisfy the monetary condition of probation of
the two judgments; that defendant was in arrears at the time of the
violation reports by the amount of $411.00 on one judgment and the
amount of $455.00 on the other judgment; that the probation officer
delayed the court hearing until 2 July 2001 to allow defendant
additional time to comply; that defendant made one payment of
$100.00 on 22 March 2001, and made no other payments between that
time and the date of the hearing; and that defendant failed to
maintain steady employment, having lost a number of jobs for
reasons within her control. The foregoing evidence is sufficient
to support the court's finding that defendant willfully and without
lawful excuse violated the monetary condition of probation.
Because a finding of a single violation is sufficient to
support revocation of probation,
Freeman, 47 N.C. App. 171, 266
S.E.2d 723, it is not necessary for us to consider whether the
evidence is sufficient to support the finding that defendant
violated the condition requiring defendant to undergo evaluationand treatment. For this reason also, it is not necessary for us to
consider defendant's next contention that the court erred by
revoking probation for violation of a condition not listed in the
judgments suspending sentence, namely evaluation and treatment by
CENTERPOINT.
Finally, defendant contends that the court erred by ordering
the activated sentences to run consecutively when the original
sentences ran concurrently. We have held that a judge revoking
probation may order activated sentences to run consecutively
without regard to whether the original sentences ran consecutively
or concurrently.
State v. Paige, 90 N.C. App. 142, 369 S.E.2d 606
(1988). This contention is overruled.
The judgments are affirmed.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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