An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-921


Filed: 19 April 2005


         v.                             Pitt County
                                     No. 01 CRS 63335

    Appeal by defendant from judgment entered 16 February 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 11 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for the State.

    Brian Michael Aus for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from the judgment revoking his probation and activating his suspended prison sentence.
     On 13 June 2002, defendant was found guilty of driving while impaired. He received a suspended sentence of two years' imprisonment and was placed on supervised probation for twenty-four months.
    A report filed on 17 July 2003 charged defendant with the following probation violations: (1) failure to attend six scheduled office visits with his probation officer between 18 February 2003 and 1 July 2003, or to have any contact with his probation officer since 1 April 2003; (2) failure to pay $335 in court costs; (3)failure to pay $180 in supervision fees; (4) failure to provide proof of full-time employment since 21 January 2003; and (5) failure to enroll in substance abuse treatment at Pitt County Mental Health Services or to complete the 90 hours of court-ordered treatment. On 15 September 2003, the district court found defendant in willful violation of the conditions of his probation as alleged in the violation report, and entered judgment revoking probation and activating his suspended sentence. Defendant appealed to superior court.
    At the beginning of the probation hearing, defense counsel admitted all of the allegations contained in the 17 July 2003 violation report. By way of explanation, defendant testified that he suffered from seizures, “mini-strokes” and high blood pressure, necessitating his use of daily medication which rendered him “comatose.” As a result of his illness, defendant claimed he was unable to secure employment but hoped to satisfy the monetary conditions of his probation by obtaining disability payments. Defendant further stated that he spent his time “running back and forth to the hospital[,]” and that he had missed his appointments with his probation officer because he was “sick” and “probably had a seizure or something like that.” Defendant's counsel informed the court that defendant had paid $445 toward his monetary obligations but had been unable to work since 28 February 2003. He introduced receipts reflecting that defendant was transported to a hospital by ambulance on four occasions in 2003.
    Defendant's probation officer advised the court that defendant“has basically not done a thing on probation. He wouldn't report to see me.” The officer asked the court to revoke defendant's probation.
    At the conclusion of the hearing, the trial judge announced his finding of “a willful violation of [defendant's] probation[.]” On the first page of his written judgment, the judge marked the box indicating his conclusion that defendant violated a valid condition of his probation, “[b]ased upon the Findings of Fact set out on the reverse side” of the judgment. It appears, however, that the judge inadvertently failed to complete the “FINDINGS” section on the second page of the judgment form. The judgment thus contains no findings of fact regarding the nature of defendant's violations or the willfulness thereof.
    On appeal, defendant challenges the trial court's failure to make any findings of fact supporting the revocation of his probation. He notes the judgment entered by the court does not identify which conditions of probation were violated, contains no findings as to the willfulness of the violations, and does not demonstrate a consideration of defendant's evidence of his inability to comply with the conditions of his probation.
    In order to revoke a defendant's probation and activate a suspended sentence, the trial court must find based upon competent evidence "that the defendant has violated, without lawful excuse, a valid condition" of probation. State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958). A finding of even a single violation is sufficient to support the revocation of probation. See State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). At a minimum, however, the court's judgment must identify “what condition of the suspended sentence or judgment of probation defendant had violated.” See State v. Sanders, 19 N.C. App. 751, 753, 200 S.E.2d 221, 222 (1973). Moreover, if the defendant offers evidence of a lawful excuse for his failure to comply with the conditions of probation, the trial court must enter findings reflecting its consideration of such evidence. State v. Smith, 43 N.C. App. 727, 732, 259 S.E.2d 805, 808 (1979). Where the defendant stipulates to the allegations in a probation violation report and offers no competent evidence to explain his violation, the trial court need not make specific findings regarding his ability to comply. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
    The judgment before us does not identify the nature of defendant's probation violation or violations and contains no finding of willfulness or lack of a lawful excuse. We further find nothing in the record to reflect whether the court found a single violation or multiple violations of defendant's probation, whether it relied in whole or in part upon violations for which defendant offered evidence of a lawful excuse, whether it considered defendant's evidence, or whether it deemed a violation for which defendant offered no lawful excuse to be sufficient to support revocation. Accordingly, we vacate the judgment and remand to the trial court for a new hearing. See State v. Hill, 132 N.C. App. 209, 212, 510 S.E.2d 413, 415 (1999).    Vacated and remanded.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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