NO. COAO2-1291
Appeal by defendant from judgments dated 11 June 2002 by Judge
Michael E. Helms in Yadkin County Superior Court. Heard in the
Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Associate Attorney General
Stacey A. Phipps, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant appellant.
BRYANT, Judge.
James Gregory Armistead appeals from judgments dated 11 June
2002 revoking his probation and activating his prison sentence.
Defendant was convicted of three counts of obtaining property
by false pretense in case numbers 99 CRS 2524, 99 CRS 3162 and 99
CRS 3163, and one count of attempting to obtain property by false
pretense in case number 99 CRS 3164. The trial court consolidated
the offenses in case numbers 99 CRS 2524 and 99 CRS 3162 for
sentencing and sentenced defendant to fifteen to eighteen months
imprisonment. The trial court suspended the sentence and placed
defendant on thirty-six months supervised probation. The trialcourt separately consolidated the offenses in case numbers 99 CRS
3163-64, sentenced defendant to a consecutive fifteen to eighteen
month term of imprisonment, suspended the sentence, and placed
defendant on thirty-six months supervised probation. As part of
the conditions of his probation, defendant was ordered: (1) to make
monetary restitution and (2) not to commit a crime.
In April of 2002, defendant's probation officer filed two
probation violation reports, each alleging defendant violated: (1)
the monetary condition of his probation by failing “to make any
payments toward his monetary obligation” and (2) the regular
condition of his probation in that “[o]n [8 April 2002] . . .
[d]efendant was convicted in Richmond County of uttering and
received an active sentence.” At a 10 June 2002 hearing, defendant
denied the allegations. Defendant's probation officer Joy Johnson
testified that defendant had made no payments toward his monetary
obligations and that defendant had been convicted of uttering and
forgery in Richmond County on 8 April 2002. Defendant did not
present any evidence. The trial court found defendant willfully
violated the two conditions of his probation as set out in the
probation violation report, revoked defendant's probation, and
activated his original sentences.
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The issue is whether there was sufficient evidence to support
the finding that defendant willfully violated conditions of
probation and whether this finding was sufficient to support the
trial court's revocation of his probation. Defendant contends the trial court erred in revoking his
probation. Specifically, defendant argues the trial court erred in
finding that he willfully failed to satisfy the monetary
obligations of his probation without “inquiry into defendant's
ability to pay.” Defendant also contends the trial court's finding
was inadequate to support its conclusion that he violated the
conditions of his probation.
In
State v. Tozzi, 84 N.C. App. 517, 353 S.E.2d 250 (1987),
this Court stated:
Any violation of a valid condition of
probation is sufficient to revoke defendant's
probation. All that is required to revoke
probation is evidence satisfying the trial
court in its discretion that the defendant
violated a valid condition of probation
without lawful excuse. The burden is on
defendant to present competent evidence of his
inability to comply with the conditions of
probation; and that otherwise, evidence of
defendant's failure to comply may justify a
finding that defendant's failure to comply was
wilful or without lawful excuse.
Id.
at 521, 353 S.E.2d at 253 (citations omitted).
In this case, the trial court revoked defendant's probation
based on defendant's failure to make payments toward his monetary
obligation and on his conviction of a crime. Defendant does not
challenge his revocation based on his violation of the regular
condition of probation that he not commit a crime. This violation
alone is sufficient to revoke defendant's probation.
See id. In
paragraph two of the probation violation reports, defendant's
probation officer alleged defendant willfully violated a regular
condition of probation that he commit no criminal offense in anyjurisdiction in that he was convicted of uttering in Richmond
County on 8 April 2002. Moreover, at the probation hearing,
defendant's probation officer testified “[defendant] was convicted
of uttering and forgery in Richmond County on [8 April 2002].”
Defendant offered no evidence to show he did not commit the crime.
This evidence is sufficient to support the trial court's finding
defendant violated this condition of his probation as set out in
the violation reports. Further, this finding of fact is
sufficiently definite to support the order revoking defendant's
probation. Because we conclude the trial court properly revoked
defendant's revocation on the ground that he committed a crime, we
need not address whether the trial court erred in revoking
defendant's probation for failure to satisfy the monetary
obligations of his probation.
See id.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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