An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-458


Filed: 3 May 2005


         v.                        Perquimans County
                                Nos. 98 CRS 1094
GABEE LEWIS COSTON,                        03 CRS 59

    Appeal by defendant from judgments entered 10 June 2003 by Judge W. Russell Duke, Jr. in Perquimans County Superior Court. Heard in the Court of Appeals 21 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., for the State.

    Gilda C. Rodriguez for defendant-appellant.

    GEER, Judge.

    Defendant Gabee Lewis Coston appeals from the trial court's revocation of his probation. Because the trial court's findings of fact that defendant willfully violated conditions of his probation are not supported by the evidence, we reverse.
    On 1 March 2000, defendant pled guilty to felony possession of cocaine and to maintaining a place to keep controlled substances. The trial court imposed a suspended sentence of six to eight months imprisonment and placed defendant on probation for 36 months. On 27 March 2000, defendant also pled guilty to possession with intent to sell cocaine and received a sentence of 10 to 12 months imprisonment. The trial court suspended the sentence and placed defendant on supervised probation for 36 months.    On 14 January 2003, defendant's probation officer filed violation reports asserting that defendant had willfully violated two conditions of his probation. The violation report stated in paragraph one that defendant had violated a monetary condition of probation in that he was "in arrears $60.00 on his S.F. [supervision] fees. He has pd. $630.00." In paragraph two, the violation report stated that defendant had also violated the condition that he "'commit no criminal offense in any jurisdiction' in that the offender has a new pending charge of misd. possession of stolen goods. The offense date was 11/6/02. The court date is to be set."
    On 10 June 2003, a jury found defendant not guilty of the charge of misdemeanor possession of stolen property. Immediately after receiving the jury's verdict of not guilty, the State informed the trial court that it would dismiss the probation violation charge. The trial court decided, however, to proceed with a hearing on the probation violations. During the hearing, the State acknowledged that defendant was no longer in arrears on the monetary condition of probation. As to the second condition, the State offered the sworn testimony presented to the jury in the preceding trial on the possession of stolen goods charge.
    The following exchange then occurred:
            [DEFENSE COUNSEL]: I don't know what else to tell you, Judge, you know other than . . . that we just had a jury trial based upon the same conduct that you're now hearing, I understand you're going to apply your own based on what you've just said your own fact finding to it. But again, we've had a jury just acquit him for the same conduct. As Iunderstand it, it is solely the same conduct, no additional facts.

            THE COURT: Well, the jury had four (4) elements to consider and the Court doesn't have a clue as to what they based their verdict on. All right. Stand up, please.

            THE DEFENDANT: (Complies.)

            THE COURT: Do you have anything you want to say?

            THE DEFENDANT: No.

            THE COURT: Well, Mr. Coston, I've been doing this for fourteen (14) or fifteen (15) years. And one of the plagues on our community is dope dealers who take stolen property in exchange for crack to cripple citizens of our communities. . . .

            . . . .

            THE COURT: The Court finds a willful violation of the probation. The Court orders that the probation be provoked [sic] and that the suspended sentences be invoked and that the Defendant be incarcerated in the custody of the North Carolina Department of Corrections for the maximum period of time. . . .

The trial court revoked defendant's probation, activated the suspended sentences, and imposed consecutive sentences totaling 16 to 20 months imprisonment. From the trial court's judgments, defendant appeals.
    Defendant first argues that the trial court lacked jurisdiction to revoke his probation because his probationary period had already expired. N.C. Gen. Stat. § 15A-1344(d) (2003) provides, however:
        The probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competentjurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation.

Because defendant's pending criminal charge _ one of the bases for the alleged probation violation _ tolled the probationary period, the trial court retained jurisdiction of the matter. Compare State v. Camp, 299 N.C. 524, 528, 263 S.E.2d 592, 595 (1980) (holding that court lacked jurisdiction because the defendant "was never charged with the commission of another crime during the probationary period which might toll the running of the probationary period").
    In his second argument, defendant contends the trial court's findings of fact are inadequate to support its conclusions of law. While defendant focuses upon the trial court's cursory findings of fact stated in open court, the findings of fact in the judgments sufficiently specify that defendant willfully violated the two conditions alleged in the violation reports and that each violation was, in and of itself, a sufficient basis upon which to revoke probation. Nevertheless, although these findings of fact are sufficient to support the conclusions of law, they are not supported by the evidence introduced at the revocation proceeding.
    The evidentiary standard is lower in a revocation proceeding than in a criminal trial: " an alleged violation of a probationary condition need not be proven beyond a reasonable doubt." State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999). Instead, "[a]ll that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sounddiscretion that the defendant has willfully violated a valid condition of probation." State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), disc. review improvidently allowed in part, aff'd in part per curiam, 350 N.C. 302, 302, 512 S.E.2d 424, 425 (1999).
    The State here conceded in open court that defendant was no longer in arrears on the monetary condition of probation. As a result, the evidence does not support the trial court's finding that defendant violated the monetary condition alleged in paragraph one of the violation report. As to the second condition, our Supreme Court has held: "When a jury or other tribunal having jurisdiction acquits a defendant of a criminal charge, it is clear that the same charge may not be the basis for invoking a previously suspended sentence." State v. Causby, 269 N.C. 747, 749, 153 S.E.2d 467, 468 (1967). The trial court therefore abused its discretion in finding that defendant had willfully violated the two conditions of probation alleged in the violation reports. Accordingly, we reverse the trial court's judgments that revoked defendant's probation and activated his suspended sentences.
    Defendant filed a pro se handwritten record on appeal and brief with this Court in which he assigned error to the judgments and to his appointed appellate counsel's performance. A defendant has no right to appear both by himself and by counsel. State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54, 122 S. Ct. 93 (2001). Because defendant is represented by counsel, his pro se filings are notproperly before this Court and have not been considered.

    Judge WYNN concurs.
    Judge TYSON concurs in result only.
    Report per Rule 30(e).

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