An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-831


Filed: 1 February 2005


         v.                        Hoke County
                                No. 02 CRS 50085-89

    Appeal by defendant from judgment entered 3 March 2004 by Judge E. Lynn Johnson in Hoke County Superior Court. Heard in the Court of Appeals 18 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Ann B. Wall, for the State.

    Jeffrey Evan Noecker, for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant appeals from judgments revoking probation and activating five consecutive sentences of eleven to fourteen months imposed on convictions of taking property by false pretenses.
    In violation reports executed 4 January 2004 and 12 January 2004, defendant's probation officer charged that defendant violated probation by failing (1) to report as directed to his probation officer, (2) to abide by curfew, (3) to report for placement in community service, (4) to remain within the jurisdiction, and (5) to comply with the rules of intensive probation. Defendant's probation officer testified that he met with defendant on 10 December 2003 and instructed defendant to report to his office at 3:00 p.m. every Tuesday. Defendant did not report on 16 December2003, 23 December 2003, and on 30 December 2003. The probation officer went to defendant's residence on 30 December 2003 to learn why he failed to keep the appointment. Defendant told him that he had been looking for a job. The probation officer told defendant to report to his office the next day. Defendant failed to comply. Defendant also did not report for the appointment on 6 January 2004. Defendant violated curfew on 10 December 2003, 31 December 2003 and 7 January 2004. Defendant never reported for community service. Defendant also moved from Hoke County to Cumberland County without notifying the probation officer in advance.
    Defendant testified that he missed the appointments: on 16 December 2003 because there was a death in the family; on 23 December because he was looking for a job; on 31 December because his mother was ill; and on 6 January 2004 because his daughter was in the hospital. He was at home asleep every night when he allegedly violated curfew. He tried to perform community service but every time he called to make arrangements he received an answering service.
    The court found that defendant willfully and without lawful excuse committed every violation alleged in the violation reports. Defendant contends the court failed to make sufficient findings of fact showing consideration of defendant's evidence. We disagree.
    A court is not required to make findings of fact in revoking probation when the defendant fails to present evidence of excuse or inability to comply with a condition of probation. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 834-35 (1985). Allit takes to revoke probation is one violation. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Defendant admitted that prior to changing his residence and leaving the jurisdiction, he failed to notify his probation officer, and that he had been told to notify his probation officer prior to changing his address. He offered no excuse for failing to notify the probation officer.
    Moreover, this Court has held that prefatory language such as “from evidence presented” is sufficient to show consideration of the defendant's evidence. State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d 195, 197 (1985). Here, the findings section of the judgment states: “After considering the record . . . , together with the evidence presented by the parties . . ., the Court is reasonably satisfied in its discretion that the defendant violated each of the conditions . . . as set forth in paragraphs 1,2,3,4,5 in the Violation Report dated 1-12-2004.” In accordance with Jones, this language shows the court considered defendant's evidence.
    The judgments revoking probation and activating the sentences are
    Judges McCULLOUGH and CALABRIA concur.
            Report per Rule 30(e).

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