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.
TIMMONS-GOODSON, Judge.
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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