Appeal by defendant from judgment entered 4 April 2006 by
Judge Hugh Lewis in Mecklenburg County District Court. Heard in
the Court of Appeals 19 March 2007.
Roy Cooper, Attorney General, by Bertha L. Fields, Assistant
Attorney General, for the State.
Kathleen Arundell Widelski for defendant-appellant.
MARTIN, Chief Judge.
On 7 April 2005, defendant juvenile T.A.B. was charged in a
juvenile petition with possession of a Schedule II controlled
substance with intent to manufacture, sell, or deliver and
possession of a Schedule VI controlled substance. On 1 July 2005,
defendant was adjudicated delinquent and ordered to be placed on
probation. A condition of the probation was that defendant comply
with a previous order, a condition of which was that defendant
[a]ttend school each and every day, all classes, not have any
excused tardies, and not be suspended or excluded from school. On
28 February 2006, a motion for review was filed. The review
hearing was held on 4 April 2006, after which the trial court found
by the greater weight of the evidence that the juvenile was in
violation of the terms and conditions of his probation. On thesame day, the trial court entered a disposition and commitment
order committing defendant to the Department of Juvenile Justice
and Delinquency Prevention for placement in a training school for
a minimum of six months and a maximum term until his eighteenth
birthday. Defendant juvenile appeals.
Defendant first argues that there was insufficient evidence
for the trial court to find that respondent willfully violated his
probation. Our standard of review of the trial court's findings is
whether they are supported by competent evidence. Pineda-Lopez v.
N.C. Growers Ass'n, Inc.
, 151 N.C. App. 587, 589, 566 S.E.2d 162,
N.C.G.S. § 7B-2510(e) states:
If the court, after notice and a hearing,
finds by the greater weight of the evidence
that the juvenile has violated the conditions
of probation set by the court, the court may
continue the original conditions of probation,
modify the conditions of probation, or, except
as provided in subsection (f) of this section,
order a new disposition at the next higher
level on the disposition chart in G.S. 7B
N.C. Gen. Stat. § 7B-2510(e) (2005). The statute requires only
that the court find that the juvenile has violated a condition of
In the present case, the trial court found that defendant was
in violation of his probation as to the motion for review on 28
February 2006. The motion for review alleged that defendant had
violated a condition of probation from the 28 June 2005 order
(filed 1 July 2005), which required defendant to [a]ttend schooleach and every day, all classes, not have any excused tardies, and
not be suspended or excluded from school. The order from the 28
June 2005 hearing required compliance with this condition where the
court checked off number 3c on the form and wrote comply with
previous order, and where the previous order from 10 May 2005,
under 3c, showed a mark next to the condition. The evidence showed
that on 26 January 2006 defendant was suspended from school for ten
days for fighting and on 14 February 2006 defendant was tardy.
Because these incidents constituted violations of defendant's
probation, the court did not err in its finding.
Defendant next argues that the trial court erred in
determining which of the statutorily permissible disposition
alternatives was the most appropriate for the juvenile. The State
agrees that the court failed to make necessary findings of fact
before entering the disposition. Defendant cites N.C.G.S. § 7B-
2501(c), which states:
In choosing among statutorily permissible
dispositions, the court shall
select the most
appropriate disposition both in terms of kind
and duration for the delinquent juvenile.
Within the guidelines set forth in G.S.
7B-2508, the court shall
select a disposition
that is designed to protect the public and to
meet the needs and best interests of the
juvenile, based upon:
(1) The seriousness of the offense;
(2) The need to hold the juvenile
(3) The importance of protecting the
(4) The degree of culpability indicated
by the circumstances of the particular case;
(5) The rehabilitative and treatment
needs of the juvenile indicated by a risk and
N.C. Gen. Stat. § 7B-2501(c) (2005) (emphasis added). This Court
has held that use of the language 'shall' is a mandate to trial
judges, and that failure to comply with the statutory mandate is
reversible error. In re Eades
, 143 N.C. App. 712, 713, 547 S.E.2d
146, 147 (2001). Thus, the trial court is statutorily required to
select the most appropriate disposition based upon the designated
In the present case, the trial court made only two findings of
fact. First, it noted that the court received and considered a
predisposition report, but the court did not incorporate it by
reference or attach a copy of the report to the order. Second,
under the heading Other Findings, the trial court indicated See
attached. The trial court failed to attach any document to the
order. The trial court's failure to make any findings of fact with
respect to any of the statutory factors contravenes the statutory
requirement to enter the most appropriate disposition and is error.
Therefore, we remand the case for a new dispositional hearing.
Reversed and remanded for a new dispositional hearing.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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