An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-575


Filed: 1 June 2004


         v.                        Columbus County
                                No. 97 CRS 970


    Appeal by defendant from judgment entered 8 October 2002 by Judge D. Jack Hooks, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State.

    Mark A. Key and Penny K. Bell for defendant-appellant.

    ELMORE, Judge.

    Defendant Wendell Freeman pled guilty to assault with a deadly weapon inflicting serious injury on 7 January 1998. The trial court sentenced defendant twenty-nine to forty-four months imprisonment, which was suspended, and the court placed him on supervised probation for sixty months. On or about 26 July 2002, defendant's probation officer filed a violation report alleging that defendant had violated the following conditions of probation: (1) special condition of probation that he not use, possess or control any illegal drug or controlled substance unless prescribed by a physician in that defendant tested positive for marijuana on 22 February 2002 and 25 April 2002; tested positive for marijuanaand opiates on 19 June 2002; and altered drug screen results on 24 September and 20 November 2001; and (2) regular condition of probation that he report as scheduled to his probation officer in that he failed to report on 14 November 2001, 3 December 2001, 15 and 17 January 2002, and 1 and 16 July 2002. The report also alleged that defendant failed to make court indebtedness payments as ordered in the amount of $100.00 per month and was in arrears $600.00; and that he failed to pay his probation supervision fees in the amount of $20.00 per month and was in arrears $120.00.
    This matter was heard on 8 October 2002. Defendant admitted to using marijuana and having tested positive for drugs, but denied trying to alter the results. Without mentioning any specific dates, defendant also admitted to having failed to report as scheduled to his probation officer. Defendant further admitted to being in arrears on money owed to the court.
    The State presented the testimony of defendant's probation officer, Bess Coleman. Coleman gave testimony that defendant had been on probation since 1997, and that this was his fourth probation violation hearing. Previously, defendant was continued on probation after being found in violation of various terms and conditions of probation. Coleman noted that most recently, after being returned to regular supervised probation, defendant tested positive for drugs, missed a number of appointments, and was behind on making his court ordered payments. The probation officer noted that defendant missed a 3 December 2001 appointment with her, because he was in jail for unpaid child support. Defendant'sprobation was scheduled to end in January 2003.
    Defendant testified on his own behalf. He stated that his child support payments (for three of his five children) prevented him from making regular payments on his court indebtedness monies and supervisory fees. Defendant noted that he had been jailed at one time for nonpayment of child support. Defendant also explained that he used drugs after one of his close friends was killed, and he was unable to attend the funeral because he was in jail for nonpayment of child support. He described this episodic drug use as a “slipup[]” and not a drug problem. Defendant also attempted to explain his problems with attending scheduled appointments with his probation officer. Finally, defendant asserted that during nearly five years of probation, he had not been charged with any additional criminal offenses.
    After hearing the testimony and arguments of counsel, the trial court found that defendant had unlawfully violated the terms and conditions of his probation, as alleged in the 26 July 2002 violation report. The trial court, therefore, activated defendant's suspended sentence. Defendant appeals.
    At the outset, we note that defendant's notice of appeal was untimely filed on 1 November 2002, some twenty-four days after the entry of judgment on 8 October 2002. See N.C.R. App. P. 4(a)(2)(requiring that notice of appeal in criminal cases be filed within fourteen days after the entry of judgment). This appeal must, therefore, be dismissed. However, in the interest of justice, we elect to treat the failed appeal as a petition for writof certiorari. See N.C.R. App. P. 21(a) (providing that the writ of certiorari may be issued “in appropriate circumstances” to permit appellate review “when the right to prosecute an appeal has been lost by failure to take timely action”).
    To that end, we proceed to defendant's argument that the trial court erred in revoking his probation, and activating his suspended sentence. While it is generally the State's burden to show that a defendant willfully or without lawful excuse violated the terms and conditions of probation, this requirement may be waived in the event of a defendant's “in-court admission of the willful or without lawful excuse violation as contained in the written notice (or report) of violation.” State v. Williamson, 61 N.C. App. 531, 533, 301 S.E.2d 423, 425 (1983). It is well settled that “[a]ny violation of a valid condition of probation is sufficient to revoke [a] defendant's probation.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
    In the instant case, defendant admitted in open court to having used and testing positive for the use of marijuana. Defendant also admitted to having missed several scheduled appointments with his probation officer. While defendant attempted to excuse his failure to miss some of the scheduled appointments, he failed to present any evidence that his drug use was not willful. Though unfortunate, the death of defendant's friend does not excuse defendant's continued use of drugs and positive drug tests. In addition, there was sufficient evidence that tended to show that defendant did willfully tamper with the drug testresults, that he willfully failed to report for scheduled appointments, and willfully failed to make payments on his court indebtedness and probation supervision fee. Although defendant either denied having violated the terms and conditions of probation and/or presented numerous excuses for his failure to comply with them, the trial court was not required to accept his evidence as true. Williamson, 61 N.C. App. at 535, 301 S.E.2d at 426. Hence, the trial court did not err in revoking defendant's probation and activating his suspended sentence.
    Having so concluded, the judgment of the trial court is affirmed.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***