STATE OF NORTH CAROLINA
v. Pitt County
No. 01 CRS 63335
ROBERT A. BOWENS
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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