State v. Pratt , 21 N.C. App. 538 ( 1974 )

204 S.E.2d 906 (1974) 21 N.C. App. 538

STATE of North Carolina
v.
Vernell PRATT.

No. 7419SC363.

Court of Appeals of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan by Associate Atty. Kenneth B. Oettinger, Raleigh, for the State.

Smith & Thigpen by Dock G. Smith, Jr., and Frank C. Thigpen, Robbins, for defendant-appellant.

BRITT, Judge.

Defendant contends that the finding of fact upon which the court revoked her probation was not supported by sufficient evidence. We agree with the contention.

Many cases involving the revocation of suspended sentences and probation judgments have found their way to the appellate courts of this State. A review of a representative number of those cases leads us to conclude that an accurate statement of the law on the question of revocation of probation is as follows: A proceeding to revoke probation is not a criminal prosecution but is a proceeding solely for the determination by the court whether there has been a violation of a valid condition of probation so as to warrant putting into effect a sentence theretofore entered; and while notice in writing to defendant, and an opportunity for him to be heard, are necessary, the court is not bound by strict rules of evidence, and all that is required is that there be competent evidence reasonably sufficient to satisfy the judge in the exercise of a sound judicial discretion that the defendant had, without lawful excuse, willfully violated a valid condition of probation. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967); State v. Morton, 252 N.C. 482, 114 S.E.2d 115 (1960); State v. McMilliam, 243 N.C. 775, 92 S.E.2d 205 (1956); State v. Sawyer, 10 N.C.App. 723, 179 S.E.2d 898 (1971).

In the case at bar, there was no competent evidence that defendant had changed her address in violation of a provision of her probation. The probation officer testified that she saw defendant at Route 1, Box 1-F, Candor, N.C., through June of 1972; that she went to that address several times subsequent to that date but failed to find defendant; that some two or three months prior to the hearing, she was advised that defendant was in Moore County "running a club where they were selling liquor"; and, that "I don't know whether she now resides at the same address." On cross-examination, the probation officer stated that while she had information that defendant was running a place in Moore County, "I do not believe I had any information on where she was staying." (While the evidence did not show how far said residence is from Moore County, we take judicial notice of the fact that the Town of Candor is only a few miles from the Moore County line.) H. Elam testified that he went to the residence at the address aforesaid five or six times looking for defendant but never found her there; that the second or third time he went there a lady came to the door and stated that defendant no longer lived there.

At the hearing, defendant and several witnesses presented by her testified that defendant had not changed her residence but had resided continuously at Route 1, Box 1-F, Candor, N.C.

Although there was direct evidence that on eight or ten occasions defendant was not found at the place that was supposed to be her residence, the evidence which tended to show that she had established her residence elsewhere was hearsay and insufficient to support the order of revocation. Our holding is supported fully by State v. McMilliam, supra.

For the reasons stated, the order appealed from is

Reversed.

HEDRICK and CARSON, JJ., concur.