Appeal by defendant from a judgment dated 25 March 2004 by
Judge Dennis J. Winner in Buncombe County Superior Court. Heard in
the Court of Appeals 25 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Rebecca E. Lem, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
defendant-appellant.
BRYANT, Judge.
Willie Albert Jones (defendant) appeals the revocation of his
probation and activation of his sentence by a judgment dated 25
March 2005 entered after a hearing before the Honorable Dennis J.
Winner. We affirm the trial court's judgment.
Facts and Procedural History
On 15 July 1999, defendant received a suspended sentence
following a conviction of Conspiracy to Deliver a Schedule II
Controlled Substance after a trial before the Honorable Loto G.
Caviness. Defendant was sentenced to ten to twelve months in the
custody of the North Carolina Department of Correction which
sentence was suspended and defendant was placed on supervisedprobation for sixty months. As conditions to his probation,
defendant was required to serve an active term of ten days in the
custody of the Buncombe County Sheriff, pay costs, fines and fees
totaling $1,211.00, complete 100 hours of community service, and
submit to alcohol and drug testing. The judgment further provided
that defendant's probation may be transferred to the State of
Florida.
On 3 May 2002, Pamela Green, a Probation Officer in Buncombe
County, issued a violation report alleging defendant had failed to
complete his community service, pay his court costs, or maintain
employment during his probationary period. Officer Green issued an
addendum to the violation report on 21 October 2002 alleging
defendant had absconded from supervision on or about 23 April 2002.
An order for arrest for felony probation violation was issued on 23
October 2002 and was served on defendant on 29 December 2003.
Defendant subsequently appeared in Buncombe County Superior Court
on 25 March 2004 for a probation revocation hearing held before the
Honorable Dennis J. Winner. At the conclusion of the hearing,
Judge Winner revoked defendant's probation and activated his
sentence by judgment dated 25 March 2004. Defendant appeals.
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Defendant raises the issues of whether the trial court: (I)
was without jurisdiction to hear the probation violation reports;
(II) erred by revoking defendant's probation when there was
insufficient evidence his violations were willful and without
lawful excuse; (III) failed to make sufficient findings beforerevoking defendant's probation; and (IV) violated defendant's
constitutional rights when it heard the probation violation reports
after the same reports had been heard by a Florida court which had
revoked defendant's probation and activated his sentence. For the
reasons below, we affirm the judgment of the trial court.
I
Defendant first argues the trial court was without
jurisdiction to hear the probation violation reports because there
was no indication defendant had been served with the violation
reports. Section 15A-1345 of the North Carolina General Statutes
requires at least twenty-four hours notice of a revocation hearing
to the probationer: “The State must give the probationer notice of
the hearing and its purpose, including a statement of the
violations alleged. The notice, unless waived by the probationer,
must be given at least 24 hours before the hearing.” N.C. Gen.
Stat. § 15A-1345(e) (2005). This Court has held an order for
arrest served on a defendant “constitute[s] sufficient notice in
writing of his probation revocation hearing in apt time to afford
him a reasonable opportunity to be heard.”
State v. Baines, 40
N.C. App. 545, 551, 253 S.E.2d 300, 304 (1979);
see also State v.
Gamble, 50 N.C. App. 658, 659-60, 274 S.E.2d 874, 875 (1981) (no
error for failure to serve the defendant with written notice of a
revocation hearing when the defendant was detained on a warrant
charging him with violation of probation and defendant signed a
waiver of counsel indicating he had been informed of the charges
against him). In the instant case, the Order for Arrest indicated the arrest
was authorized after a finding by the trial court that “the
defendant has violated the conditions of the defendant's probation,
a copy of which is attached.” The Order for Arrest was served on
29 December 2003 at which point defendant was arrested and brought
before a magistrate. Defendant appeared with counsel at his
probation revocation hearing on 25 March 2004 and made no objection
that he lacked the required twenty-four hour notice. We find
defendant had sufficient notice of the revocation hearing and its
purpose.
Defendant also argues the trial court was without jurisdiction
to hear the probation violation reports because there is no
indication in the record that a required preliminary hearing was
held.
See N.C. Gen. Stat. § 15A-1345(c) (2005) (requiring, unless
waived, a preliminary hearing on whether probable cause exists to
believe a probation violation occurred be held within seven days of
a probationer's arrest). However, defendant made no objection at
his probation revocation hearing that the required preliminary
hearing was not held and has not assigned as error the failure to
hold a preliminary hearing in this matter. This argument is
therefore not properly preserved for our review.
See N.C. R. App.
P. 10(a), (b)(1) (2006);
State v. Eason, 328 N.C. 409, 420, 402
S.E.2d 809, 814 (1991). This assignment of error is overruled.
II
Defendant next argues the trial court erred when it revoked
defendant's probation as the evidence was insufficient to showdefendant's violations were willful and without lawful excuse. To
revoke probation
[a]ll that is required . . . is that the
evidence be such as to reasonably satisfy the
judge in the exercise of his sound discretion
that the defendant has willfully violated a
valid condition of probation or that the
defendant has violated without lawful excuse a
valid condition upon which the sentence was
suspended.
State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967).
Any violation of a valid condition of probation is sufficient to
revoke defendant's probation.
State v. Freeman, 47 N.C. App. 171,
176, 266 S.E.2d 723, 725 (1980). The defendant has the burden of
showing excuse or lack of willfulness; otherwise, evidence of
failure to comply is sufficient to support a finding that the
violation was willful or without lawful excuse.
State v. Crouch,
74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). The trial
court's finding of a willful violation, if supported by competent
evidence, will not be disturbed on appeal in the absence of a
manifest abuse of discretion.
State v. Guffey, 253 N.C. 43, 45,
116 S.E.2d 148, 150 (1960).
Officer Green testified she received written documentation
from Florida stating defendant had absconded on 23 April 2002.
Additionally, while testifying on his own behalf, defendant
admitted he failed to report to his probation supervisors and to
complete his community service requirements:
[DEFENSE COUNSEL]: Did you have something you
wanted to say to the Judge regarding whether
or not you should serve this sentence?
[DEFENDANT]: Yes. Yes. Judge, I'm not denying
that the last time I reported was September 5,
2002. . . .
. . .
[DEFENSE COUNSEL]: Mr. Jones, is there
anything you want to say about the accusation
that you didn't do Community Service?
[DEFENDANT]: Oh, well, I'm guilty of that,
you know what I mean? I can't deny that I'm
guilty.
The trial court then found:
The [d]efendant has admitted that he violated
his probation with respect to his -- on his
statement on the stand, the [c]ourt finds,
with respect to not doing Community Service,
and further has admitted that, if I understood
him, that he absconded.
The [c]ourt revokes the probation, places the
suspended sentence into effect.
Defendant did not offer an excuse or any other evidence indicating
that his failure to perform community service or his absconding
were not willful or were excused and there is no evidence
establishing the trial court abused its discretion in revoking
defendant's probation. This assignment of error is overruled.
III
Defendant also argues the trial court erred when it failed to
make sufficient findings of fact before revoking defendant's
probation. Section 1345 of Chapter 15A of the North Carolina
General Statutes states: “Before revoking or extending probation,
the court must . . . hold a hearing to determine whether to revoke
or extend probation and must make findings to support the decision
and a summary record of the proceedings.” N.C. Gen. Stat. §15A-1345(e) (2005). This Court has further held: ”The minimum
requirements of due process in a final probation revocation hearing
in the Trial Division of the General Court of Justice shall include
. . . (3) a written judgment by the judge which shall contain (a)
findings of fact as to the evidence relied on, (b) reasons for
revoking probation.”
State v. Williamson, 61 N.C. App. 531, 533-
34, 301 S.E.2d 423, 425 (1983), citing
Gagnon v. Scarpelli, 411
U.S. 778, 786, 36 L. Ed. 2d 656, 664 (1973) and
Hewett, 270 N.C. at
353, 154 S.E.2d at 479-80.
In the instant case, the written judgment states:
[T]he defendant waived a violation hearing and
admitted that the defendant violated each of
the conditions of the defendant's probation as
set forth below. . . . The conditions violated
and the facts of each violation are as set
forth . . . in paragraph(s) 1 THRU 3 in the
Violation Report or Notice dated 10-21-2002.
. . .
Each violation is, in and of itself, a
sufficient basis upon which this [c]ourt
should revoke probation and activate the
suspended sentence.
While these findings contain errors, the errors are clerical in
nature and there is no question as to the intention of the trial
court as reflected in the transcript of the revocation hearing.
See State v. Sellers, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106-07
(2002) (stating a determination by the trial court in open court as
reflected in the transcript is dispositive when there is a
discrepancy between the court's announced determination and the
written judgment form). Defendant did not waive his probation violation hearing as he
clearly had a violation hearing on 25 March 2004 from which the
judgment he appeals from was entered. At the hearing, defendant
admitted he violated the three conditions of his probation
indicated in the judgment, although two of these violations are
listed in the Violation Report dated 3 May 2002 and one is listed
in the Addendum to the Violation Report dated 21 October 2002.
Defendant is not prejudiced by these clerical errors as the record
and transcript reveal the trial court properly considered the
evidence before it and did not abuse its discretion in ordering
defendant's probation revoked and activating his sentence. This
assignment of error is overruled.
IV
Defendant lastly argues the trial court subjected him to
double jeopardy when it held the probation revocation hearing based
upon violation reports that had been previously heard by a Florida
court which had revoked defendant's probation and activated his
sentence. Our Supreme Court has previously stated that the
“protections against double jeopardy provide that a person may not
be unfairly subjected to multiple trials for the same offense. Nor
may a defendant be punished twice for the same statutory offense.”
State v. Murray, 310 N.C. 541, 547, 313 S.E.2d 523, 528 (1984)
(citations omitted),
overruled on other grounds by State v. White,
322 N.C. 506, 369 S.E.2d 813 (1988). “The burden is on the
defendant to plead and to offer evidence to sustain his plea of
former jeopardy.”
State v. Christy, 26 N.C. App. 57, 59, 215S.E.2d 154, 156 (1975), citing
State v. Coats, 17 N.C. App. 407,
194 S.E.2d 366 (1973).
At the revocation hearing, defendant stated he had served
eight-and-one-half months of his suspended sentence in Florida when
the Florida court revoked his probation in October 2002 in
conjunction with a conviction on “domestic” charges. Upon
questioning from the trial court concerning any time defendant
served in Florida as a result of violations of this probation,
defendant's counsel admitted defendant was arrested in Florida on
1 December 2003 and had since served 115 days in prison, but stated
“I just need to remain silent on that” when asked if anyone had
gotten defendant's record from Florida.
Defendant's sole evidence that his North Carolina probation
was revoked in Florida, and that he served over eight months of an
active sentence as a result, is his own testimony. Given that
defendant produced no records to support his testimony, and that
defendant's own counsel contradicted his assertion, defendant has
not carried his burden of proof that he was subjected to double
jeopardy. This assignment of error is overruled.
Affirmed.
Judges CALABRIA and JOHN concur.
Report per Rule 30(e).
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