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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-429


Filed: 2 October 2007


    v.                            Guilford County
                                Nos. 06 CRS 24111, 24193

    Appeal by defendant from judgments entered 20 November and 27 December 2006 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 24 September 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Stormie D. Forte, for the State.

    Bryan Gates for defendant-appellant.

    BRYANT, Judge.

    On 30 May 2006, Franklin Jermaine Davis (defendant) pled guilty to two counts of felony obtaining property by false pretenses and two counts of felony financial identity fraud. The trial court sentenced defendant to two consecutive sentences of twelve to fifteen months, which were suspended for thirty months while defendant was on supervised probation.  
    On 5 October 2006, defendant's probation officer filed a probation violation report alleging that defendant had violated the terms and conditions of his probation by testing positive for marijuana and failing to obtain employment. On 6 November 2006, the trial court conducted a probation revocation hearing. At the hearing, defendant admitted to the alleged violations andadmitted that the violations were willful. Defendant also requested that his sentences be activated and that the sentences run concurrently. However, the trial court informed defendant that it could not guarantee that this request would be granted.
    At the conclusion of the hearing, the trial court orally found that defendant had willfully violated the terms and conditions of his probation without a lawful cause or excuse and ordered defendant's probation be revoked and his sentences be activated.  Despite the trial court's oral pronouncements at the hearing, the judgments of probation revocation reflect that defendant's suspended sentences were activated not on the basis of a finding of probation violations, but rather at defendant's election to activate his sentences. Defendant now appeals these judgments.


    In his sole assignment of error, defendant contends the judgments of probation revocation must be vacated and the case must be remanded for further proceedings because the statutory provision permitting a defendant to elect to serve a suspended sentence had been repealed and was not applicable to him. We agree with defendant that this repealed statutory provision does not apply to him.
    Pursuant to former N.C. Gen. Stat. § 15A-1341(c), a defendant could voluntarily elect to serve a suspended sentence instead of remaining on probation. See N.C. Gen. Stat. § 15A-1341(c) (1995), repealed by 1995 N.C. Sess. Laws Ch. 429, §§ 1,5 (effective 1 January 1997). After repeal, this election option was onlyavailable to defendants whose criminal offenses were committed before 1 January 1997. Given that defendant's criminal offenses were committed in 2005, this option was not available to him. Consequently, the only available basis for the trial court's activation of defendant's suspended sentences in this case was a finding that defendant had violated his probation.
    While the hearing transcript reflects that the trial court made a finding of a probation violation based on defendant's own admissions, the written judgment does not reflect this finding. Accordingly, we remand the judgments for entry of proper findings.
    Reversed and remanded.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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