STATE OF NORTH CAROLINA
v. Wake County
No. 03 CRS 122776-77;
03 CRS 17779-88
LASON CASEEM ALERS
Attorney General Roy Cooper, by Assistant Attorney General
Gaines M. Weaver, attorney for the State.
William D. Spence, attorney for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from the revocation of his probation and
activation of his sentence. On 11 March 2003 defendant pled guilty
to twenty counts of felony drug offenses. On 28 October 2004,
defendant was sentenced to a minimum of 70 months and a maximum of
84 months imprisonment which was suspended in lieu of 36 months
supervised probation and a monetary fine.
On 30 March 2006, defendant's probation officer filed a probation violation report alleging that defendant had violated his probation by being in arrears on his monetary conditions of probation and by committing additional criminal offenses. Specifically, the violation report alleged that defendant wasconvicted of possession with intent to sell or deliver cocaine and manufacturing cocaine on 1 December 2005 and given a sentence of active imprisonment of six to eight months on each charge to run consecutively.
On 19 June 2006, the trial court conducted a probation revocation hearing. The trial court found that defendant had violated the terms of his probation, revoked his probation and activated his sentence. At the close of the hearing, the trial court made the following oral ruling:
All right. Here's what I will do. What I will do is find that the violation of his probation occurred at the time he was convicted of subsequent offenses and received an active sentence. Through no fault of the probation officer, they were unaware that he was serving an active sentence, and the serving of the violation itself was delayed until he was at the conclusion of his sentence, and he otherwise would have been entitled to have credit for both of these because they were not directed to be run consecutively.
So what I'll do is find that there was an administrative error in the failure to serve him at the time of the beginning of the incarceration on the other sentences and give him credit for the 12 months -- the six-to-eight back to back that he received; that the active sentence is toward the active portion on this sentence.
(emphasis added). Though the trial court's oral pronouncement demonstrates that defendant's probation was being revoked due to his having committed additional crimes while on probation, the written judgement and commitment of revocation of probationreferences paragraphs one and two of the violation report which correspond to the alleged monetary violations.
On appeal, defendant attempts to challenge the trial court's revocation of his probation on the grounds that no evidence was presented at the hearing showing that his failure to comply with the monetary conditions of his probation were willful. Defendant is correct that there was no such evidence presented. However, this was clearly due to defendant's immediate admission to the willful violation of his probation by committing additional crimes. Because it is abundantly clear from the record that the trial court revoked defendant's probation due to his additional convictions, we agree with the State that the reference to the monetary conditions in the written judgment is an obvious clerical error. Consequently, defendant's arguments related to violation of the monetary conditions are without merit, and defendant's assignments of error are overruled.
However, we remand this matter for the correction of the clerical error to show that defendant violated paragraph three in the violation report filed 30 March 2006. See State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999) (It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth.) (citing State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956)).
Affirmed and remanded in part for correction of the order revoking probation.
Judges CALABRIA and JACKSON concur. Report per Rule 30(e).
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