State v. Johnson , 1974 N.C. App. LEXIS 2190 ( 1974 )

BROCK, Chief Judge.

Defendant contends that the evidence contained in the record on appeal is insufficient to support the order of the trial court revoking probation and the order activating the suspended sentence. Defendant concedes that the suspension of an active sentence is a matter within the sound discretion of the trial court, but argues that the offenses committed were all misdemeanors and, when considered with the mitigating circumstances testified to at the hearing, constituted an insufficient basis for revocation of probation. We disagree.

A defendant who consents to the suspension of a sentence upon specified conditions may not attack an order putting the sentence into effect “except: (1) On the ground that there is no evidence to support a finding of a breach of the conditions of suspension; or (2) on the ground that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time.” State v. Caudle, 276 N.C. 550, 553, 173 S.E. 2d 778. Defendant does not challenge the reasonableness of the condition that he violate no penal law of any state and limits himself solely to the first ground set forth above.

Evidence sufficient to support a finding of breach of probationary conditions is that which reasonably satisfies “the judge, in the exercise of his sound discretion, that the defendant has violated a valid condition upon which the sentence was so suspended.” State v. Seagraves, 266 N.C. 112, 113, 145 S.E. 2d 327. The evidence must be substantial and “of sufficient probative force to generate in the minds of reasonable men the conclusion that defendant has in fact breached the condition in question.” State v. Millner, 240 N.C. 602, 605, 83 S.E. 2d 546.

We find that there is substantial evidence in the record to support the trial judge’s conclusion that defendant breached the terms and conditions of his probation. Defendant himself took the stand and testified that he was delinquent in the installment payments ordered by the terms of the probation, and further admitted that he had been convicted of the offenses about which his probation officer had testified. Defendant’s contention that these are “technical” violations insufficient to support revocation of probation and activation of the suspended sentence is untenable and without merit. The evidence is clearly sufficient to support the trial court’s orders. This assignment of error is overruled.

We decline to consider a second argument advanced by defendant in his brief. The argument is supported neither by an exception nor an assignment of error. In our opinion the orders entered by the trial court were correct and were supported by substantial evidence.

Affirmed.

Judges Britt and Parker concur.