There was no abuse of discretion in calculating a defendant's credit for time served while
revoking his probation.
Attorney General Roy Cooper, by Assistant Attorney General
Myra L. Griffin, for the State.
Brannon Law Firm, P.L.L.C., by Anthony M. Brannon, for
defendant-appellant.
CALABRIA, Judge.
Defendant appeals from judgments entered in superior court
upon the revocation of his probation for various offenses.
Defendant asserts the trial court abused its discretion in failing
to properly credit him for time served. We cannot find an abuse of
discretion and therefore affirm the judgment of the trial court.
On 24 June 2002 in Surry County District Court, the Honorable
Otis M. Oliver entered two judgments upon revocation of defendant's
probation. In the first judgment, numbered 02 CR 3643, Judge
Oliver activated defendant's 120-day sentence for possession of
drug paraphernalia, driving while license revoked, and giving
fictitious information to a police officer. In the second
judgment, Judge Oliver activated defendant's sixty-day sentence fordriving while license revoked in 02 CR 3644. Defendant gave notice
of appeal to superior court.
On 9 December 2002 in Surry County Superior Court, the
Honorable Clarence W. Carter heard defendant's admission to several
charged probation violations and entered judgment upon revocation
of his probation in 02 CRS 3645, activating defendant's eleven to
fourteen month suspended sentence for the offenses of sale and
delivery of marijuana and assault on a government official. The
judgment awards defendant thirty days credit for pre-trial
confinement. Judge Carter entered a second judgment revoking
defendant's probation and activating his sentence of twenty to
twenty-four months for conspiracy to sell or deliver cocaine in 99
CRS 8438. The judgment provides that the sentence shall run
consecutive to the sentence imposed in 02 CRS 3645, and awards
defendant nineteen days credit for pre-trial confinement. The
hearing transcript further reflects Judge Carter's entry of
judgments upon revocation of probation consistent with those
entered in district court by Judge Oliver in 02 CR 3643 and 02 CR
3644. However, the superior court judgments in these cases do not
appear in the record on appeal.
Defendant filed timely notice of appeal to this Court from
Judge Carter's judgments. On appeal, defendant does not challenge
the superior court's decision to revoke his probation but claims
the court abused its discretion by not giving him credit for all
time previously served in confinement. Defendant asserts that he
had been incarcerated for seven months at the time of his probation
hearing and “believed he was serving time for driving while licenserevoked and other probation related sentences.” He faults the
court for failing to make sufficient findings of fact to resolve
“conflicts in the evidence” on the matter. He asks that the cause
be remanded to determine the correct amount of time he already
served. We disagree.
Under N.C. Gen. Stat. § 15-196.1 (2003), a defendant is
entitled to credit for “the total amount of time a defendant has
spent, committed to or in confinement in any State or local
correctional . . . institution as a result of the charge that
culminated in the sentence.” Defendant thus has a statutory right
to credit against his sentence for any time spent in custody on
that particular charge, whether pre-trial or post-conviction. See
State v. Farris, 336 N.C. 552, 556, 444 S.E.2d 182, 184 (1994).
The statute further provides: “[u]pon sentencing or activating a
sentence, the judge presiding shall determine the credits to which
the defendant is entitled and shall cause the clerk to transmit to
the custodian of the defendant a statement of allowable credits.”
N.C. Gen. Stat. § 15-196.4 (2003).
In the case at bar, Judge Carter, after hearing the evidence,
determined that defendant “has willfully violated the terms of his
probation,” ordered he “be committed to the North Carolina
Department of Corrections” and “further order[ed] he be given
credit for 19 days served” in one of the pending cases. Following
the Court's recitation of the order, the following exchange
occurred:
THE COURT: . . .Anything else, gentlemen?
DEFENSE COUNSEL: Judge, I just ask Madam Clerk
_ _ I know she will do _ _ at least give Mr.
Reynolds any credit he's entitled. THE COURT: I gave him the 19 days you pointed
out. You know of any other?
DEFENSE COUNSEL: I don't know of any other
other than what he's telling me. What he's
telling me doesn't correspond with what Madam
Clerk is saying as far as the time he's
actually serving.
THE COURT: I already indicated, Madam Clerk,
any time he's due credit for. We'll give him
credit for it day for day. Sure will.
It is clear from the transcript that the court considered the
evidence before it and determined, in accordance with N.C. Gen.
Stat. § 15-196.4, the credits defendant was entitled to receive.
Defendant asserts on appeal the court did not consider his
evidence. However, the transcript reveals merely defendant's
expressed “understanding that he was doing this 120 day sentence
for driving while license revoked, and 60 day sentence, Judge, I
think on similar charges that he was already pulling this time was
his information.” Based on the evidence presented to the court, we
cannot find an abuse of discretion.
We note, however, defendant is not without relief. The
statute on awarding credits provides: “[u]pon reviewing a petition
seeking credit not previously allowed, the court shall determine
the credits due and forward an order setting forth the allowable
credit to the custodian of the petitioner.” N.C. Gen. Stat. § 15-
196.4. Accordingly, defendant may petition the court and provide
evidence of the credits he asserts are due.
Defendant has expressly abandoned his remaining assignments of
error in his brief to this Court.
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
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