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1. Probation and Parole--probation revocation--credit for prior confinement
The trial court erred in a probation revocation hearing by failing to award defendant credit on her activated sentence for her prior confinement for violation of her probation, and the case is remanded for entry of a new judgment crediting defendant for her prior confinement, because: (1) N.C.G.S. § 15-196.1 manifests the legislature's intention that a defendant be credited with all time defendant was in custody and not at liberty as the result of the charge; (2) our Supreme Court has held that a defendant receives credit for time previously spent incarcerated for violation of probation upon the revocation of probation and activation of a suspended sentence; and (3) defendant is entitled to a thirty-day credit for that time she previously spent incarcerated for violation of her probation.
2. Probation and Parole--probation revocation--findings of fact
The trial court did not err by revoking defendant's probation for obtaining property by false pretenses and activating her sentence, because: (1) although the trial court is required to make findings of fact demonstrating that it considered the evidence offered at a probation revocation hearing, it would not be reasonable to require the trial court to make specific findings of fact on each of defendant's allegations tending to justify her breach of conditions; (2) assuming arguendo that the trial court erred by making the finding that defendant was not present at several curfew checks, defendant failed to demonstrate prejudice resulting from the alleged error; (3) a review of the record revealed that sufficient evidence supported the trial court's findings regarding defendant's other alleged probation violations; and (4) although defendant offered an explanation regarding several of the alleged violations, substantial evidence existed in the record to reasonably satisfy the trial court that defendant breached the conditions of her probation without lawful excuse.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.
Tahisia L. Belcher (defendant) appeals the trial courtjudgment revoking her probation for obtaining property by false pretenses. For the reasons discussed herein, we hold that the trial court did not err by revoking defendant's probation, but we remand the case to the trial court for resentencing.
The facts and procedural history pertinent to the instant appeal are as follows: On 8 April 2003, defendant pled guilty to obtaining property by false pretenses, and she was sentenced to six to eight months incarceration. The trial court subsequently suspended defendant's sentence and placed her on supervised probation for twenty-four months. In addition to the usual terms and conditions of supervised probation, defendant was required to pay restitution and complete forty-eight hours of community service.
On 25 September 2003, the State filed a probation violation report against defendant, alleging that defendant: (i) failed to complete her required amount of community service; (ii) failed to report to her probation officer at the required time; (iii) failed to notify her probation officer of her change in address; and (iv) was in arrears of the monetary conditions of her probation. On 30 December 2003, the trial court found defendant in contempt of court under N.C. Gen. Stat. § 15A-1344(e1), and it sentenced her to thirty days imprisonment. The trial court further ordered that defendant submit to intensive supervision for six months, and it granted defendant sixty additional days to complete her required amount of community service.
On 29 March 2004, the State filed a second probation violationreport against defendant. The report alleged that defendant: (i) tested positive for cocaine; (ii) failed to complete her required amount of community service; (iii) failed to report for three scheduled office visits; (iv) failed to be present at her residence for twelve curfew checks; (v) failed to notify her probation officer of her change in address; and (vi) was in arrears of the monetary conditions of her probation.
A probation violation hearing was held on 16 August 2004. At the hearing, defendant admitted through counsel to testing positive for cocaine. Defendant also admitted to failing to complete her community service requirements, but she explained through counsel that she was pregnant at the time of the hearing, and that it was a high-risk pregnancy that left her unable to complete the requirements. Although she denied being absent for six curfew checks, defendant admitted being absent for the remaining six curfew checks. However, defense counsel later withdrew that admission, noting that there were no times alleged in association with the violations and that defendant thus did not know what times they're alleging that she was not there[.] As an explanation for her admitted failure to report for scheduled office visits and notify her probation officer of her change in address, defendant informed the trial court that she was working and that she and her sister had an argument and that she had moved from her sister's residence to her mother's residence. Defendant explained that she did not inform her probation officer about the move because she was afraid she was already going to get violated andthis would just result in her getting locked up. As to her being in arrears of the monetary conditions of her probation, defendant explained that she has two children, she's got a third on the way, and . . . simply . . . doesn't have but so much money to go around and she's been using it to support herself and support her children.
Following testimony and argument from both parties, the trial court found a wilful violation of probation and adopted the allegations of the 29 March 2004 probation violation report. The trial court revoked defendant's suspended sentence and sentenced her to six to eight months imprisonment, with credit for the nine days she spent incarcerated prior to entry of the judgment. Defendant appeals.
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