State v. Simpson ( 1975 )

HEDRICK, Judge.

When this matter came on for hearing before Judge Ferrell on 5 February 1975, the defendant was not represented by counsel. The record indicates the court reviewed the record and particularly the orders entered by Judge Thornburg following the hearings on 9 August and 18 November 1974. Apparently Judge Ferrell talked to the defendant regarding his employment status and questioned the clerk regarding “any other violations.” Although Judge Ferrell incorporated in his findings of fact the findings made by Judge Thornburg in his two orders, it seems clear he revoked the defendant’s probation on a finding that the defendant had failed to support his family pursuant to an order of the district court entered on 30 July 1974. If the defendant did in fact fail to support his family in violation of the district court’s order, and such was a violation of a condition of probation, it occurred between 18 November 1974 and 5 February 1975, since Judge Thornburg found as a fact “that the defendant has caught his support payments up to date on this date.”

Defendant contends, and the State concedes, error in that defendant was not represented by counsel at the hearing on 5 February 1975 before Judge Ferrell. G.S. 15-200.1; State v. Atkinson, 7 N.C. App. 355, 172 S.E. 2d 249 (1970). While the record indicates that the defendant was represented by counsel at the hearing before Judge Thornburg on 18 November 1974, it is clear he was not represented by counsel at the continued hearing wherein Judge Ferrell revoked the probation. Indeed, the record strongly suggests that no meaningful hearing was really conducted by Judge Ferrell.

For the reasons stated the order revoking defendant’s probation is vacated and the cause is remanded to the superior court for further proceedings.

Vacated and remanded.

Chief Judge Brock and Judge Clark concur.