State v. Monroe , 83 N.C. App. 143 ( 1986 )

349 S.E.2d 315 (1986)

STATE of North Carolina
v.
Joseph R. MONROE.

No. 8620SC223.

Court of Appeals of North Carolina.

October 21, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

David Ray Martin, Pinehurst, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues that the trial court erred in revoking his probation because the trial court's findings of fact in the revocation order do not support the conclusion of law that defendant breached a condition of probation by committing a criminal offense. We disagree.

The court does not specifically state whether the criminal offense committed was a violation of G.S. 14-106, obtaining property in return for a worthless check, or G.S. 14-107, the worthless check statute. However, the evidence presented amply supports a finding that defendant violated G.S. 14-107. Defendant contends that the record shows no evidence of the requirement that when the checks were written defendant knew or had reason to know that there were insufficient funds in the account on which the checks were drawn.

The record shows that when defendant was confronted by the manager of Hamlet Wholesale about the first check returned for insufficient funds he was asked if the other two checks would also be returned. The defendant made no assurance that the checks were good nor did he claim any knowledge of their standing. Defendant responded, "Oh, yeah, I'll take care of those. I'll be down tomorrow." By asserting that the two checks needed taking care of defendant implied that he knew that there was an insufficient amount in the account when the checks were drawn. Further, defendant never cleared up the matter by making payment. This evidence is sufficient to support the court's holding.

Defendant next argues that the court erred in revoking defendant's probation prior to proving that his conduct amounted to a commission of a criminal offense. Specifically, defendant contends that the proper procedure would have been to try him in superior court on the alleged criminal offenses which were the basis for his revocation. Defendant argues that when the commission of a criminal offense is the basis for revoking probation, fundamental fairness requires that the probationer be afforded a jury trial. We disagree.

Suspension of a sentence or probation is given to one convicted of a crime "as an act of grace." State v. Boggs, 16 N.C.App. 403, 192 S.E.2d 29 (1972). All that is required in revoking a suspended sentence is evidence which reasonably satisfies the judge in the use of his sound discretion that a condition of probation has been willfully violated. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967). Revocation of probation is solely within the judge's discretion and is outside of the jury's province. State v. Guffey, 253 N.C. 43, 116 S.E.2d 148 (1960). Defendant is not entitled to a jury trial on the matter.

In support of his argument defendant cites State v. Causby, 269 N.C. 747, 153 S.E.2d 467 (1967), which states that when a defendant is acquitted of a criminal charge or such a charge is pending then that charge cannot be the single basis for revoking probation and activating a suspended sentence. It is not shown in the record whether the violations of probation by the defendant in this case have been adjudicated as criminal charges or not. However, it is irrelevant in the case sub judice where the judge upon revoking defendant's probation made independent findings of his own as to the commission of these crimes. The judge did not base his holding of revocation solely upon pending criminal charges. In the case at bar, the judge heard testimony from four witnesses, including the defendant himself. By making his own independent findings the judge concluded that defendant had violated a certain condition of his probation. This the judge is fully authorized to do. See State v. Guffey, 253 N.C. 43, 116 S.E.2d 148 (1960). Any verdict acquitting the defendant of said charges is not binding on a judge making independent findings based upon the evidence before him or her. See State v. Greer, 173 N.C. 759, 92 S.E. 147 (1917). See also State v. Debnam, 23 N.C.App. 478, 209 S.E.2d 409 (1974).

Defendant also raises an issue dealing with the adequacy of the notice he received concerning the probation revocation hearing. Defendant neither raised this issue in his assignments of error nor in any exceptions. As a result, Rule 10(a) of the North Carolina Rules of Appellate Procedure bars consideration of this argument on appeal.

Defendant finally contends that G.S. 15A-1343(b)(1) is unconstitutionally vague because of its language stating that a probationer must "commit no criminal offense." As to probationer, this statutory language is absolutely clear. They must not violate any criminal law. It is not plausible that probationers do not receive notice from such language. Defendant's contention is without merit.

Affirmed.

HEDRICK C.J., and ORR, J., concur.