An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-739


Filed: 21 February 2006


v .                         Buncombe County
                            No. 99 CRS 4926

    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.

    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.

    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.

    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.

    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.


    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.
    Judges CALABRIA and JOHN concur.
    Report per Rule 30(e).

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