STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 00 CRS 030098
DAVID VINCENT GARRETTE
Attorney General Roy Cooper, by Assistant Attorney General
Bertha L. Fields, for the State.
Gilda C. Rodriguez for defendant appellant.
GREENE, Judge.
David Vincent Garrette (Defendant) appeals from a Judgment
and Commitment upon Revocation of Probation dated 10 October 2001.
Defendant pled guilty to common law robbery, and the trial
court suspended his active term of ten-to-twelve months
imprisonment. As a result, the trial court also placed Defendant
on supervised probation for thirty-six months, with the first six
months of his probationary period to be spent in an intensive
supervision program. On or about 10 September 2001, Defendant's
probation officer, Carl R. Sparks (Sparks), filed a violation
report, alleging Defendant had violated the following terms and
conditions of probation: (1) Defendant tested positive for cocaineon 13 March, 24 April, and 28 May 2001 and admitted to cocaine use
on 10 June 2001, in violation of special condition of probation
#13; (2) Defendant failed to report to Sparks on 20 March, 17
April, 19 June, 10 July, 24 July, and 21 August 2001, in violation
of regular condition of probation #6; (3) Defendant violated curfew
on 11 March, 19 March, 14 June, 5 July, 12 July, 16 July, 26 July,
8 August, and 13 September 2001, in violation of special condition
of probation #3(h); and (4) Defendant was $585.00 in arrears on his
monetary obligation to the trial court, in violation of the
monetary condition of probation.
This matter was heard in the superior court on 10 October
2001. Defendant admitted to testing positive to cocaine as alleged
in the probation violation report. Defendant also admitted he
failed to report to Sparks but denied his failure was willful.
Defendant denied the allegations of the report as to his failure to
abide by curfew as to the 11 March, 19 March, and 14 June 2001
violations and moved to dismiss the remaining curfew violations as
being beyond the scope of his intensive probation. Finally,
Defendant admitted to being in arrears on his monetary obligation
but denied willfulness.
At the outset, the trial court allowed Defendant's motion to
dismiss the allegations in the violation report with regard to
violations of the terms of intensive probation that would have
occurred after the six-month probationary period expired. Sparks
testified he met with Defendant on or about 2 January 2001, at
which time he explained the terms and conditions of his probation. Sparks told Defendant he was to report to his office every Tuesday
from 12:30 to 2:00 p.m. Defendant subsequently missed several
scheduled appointments and failed to contact Sparks' office prior
to the missed appointments. Sparks testified Defendant had told
him he missed his 17 April 2001 scheduled meeting because he
overslept. Defendant's stated reason for missing his 19 June and
24 July 2001 appointments was he was at the hospital. Sparks also
testified that Defendant told him on 11 July 2001, he had missed
his 10 July 2001 appointment because he had been robbed. Finally,
Sparks testified though Defendant paid $150.00 during the time he
was on probation, he was still some $585.00 in arrears.
At the close of the State's evidence, the trial court allowed
Defendant's motion to dismiss those allegations in the probation
violation report as to Defendant's violation of curfew set by
Sparks due to the State's failure to proffer any evidence in
support thereof. Defendant then presented evidence which tended to
show he did indeed fail to meet with Sparks on several occasions.
Defendant, however, testified he missed the appointment because he
either overslept or was at the veteran's hospital. Defendant
explained he was disabled and taking prescription medication which
caused drowsiness and lack of coordination. In addition, Defendant
explained he missed another appointment after being beaten during
a robbery that occurred just days before the scheduled appointment.
With regard to his monetary obligations, Defendant testified he was
unable to make all of his payments because of personal living
expenses, and college and personal loans. At the close of all of the evidence, the trial court found
Defendant had willfully violated the terms and conditions of
probation as listed in the remaining allegations of the September
2001 probation violation report. As a result, the trial court
revoked Defendant's probation and activated his suspended sentence.
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