State v Flora, (05-258) 10/18/2005

Appeal by Defendant from judgments entered 26 October 2004 by Judge Nathaniel J. Poovey in Superior Court, Mecklenburg County . Heard in the Court of Appeals 3 October 2005.

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

Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant- appellant.

WYNN, Judge.

    “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). Because we find that the State presented competent evidence to support the trial court's finding that Defendant willfully, and without lawful excuse, violated terms of his probation, we affirm the decision of the trial court.
     On 5 June 2003, Defendant Clifton L. Flora pled guilty to breaking and entering, larceny after breaking and entering, and possession of stolen goods/property. Defendant was sentenced totwo consecutive terms of eight to ten months imprisonment and ordered to make restitution. Defendant's sentences were suspended and he was placed on supervised probation for thirty months.
    On 2 October 2003, probation violation reports were filed alleging that Defendant had failed to comply with the terms of his probation. Specifically, the reports alleged that Defendant had: (1) failed to report to his probation officer as scheduled; (2) violated his curfew; (3) was in arrears toward his court-ordered restitution payments; and (4) had changed his place of residence without informing his probation officer. Defendant admitted the violations and his probation was continued with modifications. As part of his modified probation, Defendant was required to report to the Structured Day Program and comply with all recommendations and requirements of the program.
    On 16 January 2004, probation violation reports were again filed alleging that Defendant had failed to comply with the terms of his probation. The reports alleged that Defendant had: (1) failed to report to his probation officer as scheduled; (2) had changed his place of residence without informing his probation officer; and (3) was terminated from the Structured Day Program.
    On 26 October 2004, a probation violation hearing was held in Superior Court, Mecklenburg County . Defendant admitted to the allegations in the probation violation report. The State presented evidence that Defendant had reported to the day program for an initial assessment, but failed to report back. The trial court found that Defendant had willfully violated the terms of hisprobation. Accordingly, the trial court revoked Defendant's probation and activated his suspended sentences. Defendant appeals.
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     Defendant argues that there was insufficient evidence to support the trial court's ruling that he violated his probation because no testimony was presented concerning any of the allegations on the violation report. After careful review of the record, briefs and contentions of the parties, we find no error.
    This Court has stated:
        Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse. The burden is on defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse.

Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253 (citations omitted).
     In the case sub judice, it was alleged that Defendant violated his probation by failing to report for scheduled meetings at the Structured Day Program. The State presented evidence that Defendant was required to report to the Structured Day Program as part of his modified probation. However, after reporting for the initial assessment, Defendant did not report back. Additionally, the probation officer's written report of the probation violation was admissible in evidence. State v. White, 129 N.C. App. 52, 58,496 S.E.2d 842, 846 (1998), aff'd in part, review dismissed in part, 350 N.C. 302, 512 S.E.2d 424 (1999); see also State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979) (“Sufficient evidence was presented in the verified and uncontradicted violation report served upon the defendant to support the trial court's findings and conclusions.”) (citing State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967)) . Thus, there was competent evidence in the record to support the trial court's conclusion that Defendant violated his probation.
    Once the State presented evidence that Defendant had violated his probation, the burden shifted to Defendant to show excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (citing State v. Young, 21 N.C. App. 316, 204 S.E.2d 185 (1974)). If a defendant fails to carry this burden, evidence of failure to comply may justify a finding that the violation was willful or without lawful excuse. Id. (citing Young, 21 N.C. App. 316, 204 S.E.2d 185). Here, Defendant admitted the violation, but offered no competent evidence to explain or to excuse his probation violation. Thus, because Defendant presented no competent evidence showing excuse or lack of willfulness as to any of the probation violations set forth in the probation violation report, he failed to carry his burden.
    Because there were sufficient grounds to revoke Defendant's probation, consideration of Defendant's remaining probation violations are moot. Accordingly, we conclude the trial court did not abuse its discretion in revoking Defendant's probation.     Aff irmed.
    Judges CALABRIA and JACKSON concur.
     Report per Rule 30(e).

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