State v. Parker , 55 N.C. App. 643 ( 1982 )

286 S.E.2d 366 (1982)

STATE of North Carolina
v.
Lacy Allen PARKER.

No. 8112SC518.

Court of Appeals of North Carolina.

February 2, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.

Moses, Diehl & Pate by Philip A. Diehl, Raeford, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues that the trial court erred in imposing as a condition of probation a restriction not reasonably related to the crime of which defendant had been convicted and, therefore, that violation of this condition could not serve as the basis for revocation of his probation. In support of this assignment of error, defendant cites State v. Cooper, 51 N.C.App. 233, 275 S.E.2d 538 (1981), wherein this Court stated that "[c]onditions of probation must bear some reasonable relationship to the offense committed...., G.S. 15A-1343(b)(17)." Id. at 234, 275 S.E.2d 539. We find, however, that defendant's reliance upon Cooper is misplaced. Unlike the case at bar, Cooper involved a condition of probation devised entirely by the court. Such a condition clearly falls under subsection 17 of the statute and, indeed, must be "reasonably related" to the defendant's crime. Our Supreme Court recently reversed Cooper in an opinion filed 6 October 1981, indicating its willingness to find "relatedness" where the connection between the crime and the condition of probation eluded this Court. We find it unnecessary to establish such a connection in the case before us, however, because the challenged condition was not a creation of the trial court, but rather is one of the sixteen "appropriate conditions" of probation specifically authorized by the legislature. G.S. 15A-1343(b)(1)-(16).

A review of the statute reveals that while some conditions apparently are intended to relate to specific types of crimes, others are designed to aid in the general rehabilitation of convicted criminals. In the case at bar, for example, one of the conditions not challenged by defendant is that set forth in G.S. 15A-1343(b)(5), that he "support his dependents and meet other family responsibilities." There is nothing in the record to indicate a direct relationship between this condition and the defendant's crime, but its purpose is obvious. A criminal defendant who receives probation in lieu of an active sentence is the beneficiary of judicial largess. The restrictions under which he must live during the term of his probation are a small price to pay for the key to the prison door. Indeed, a defendant who is unwilling to live with such conditions can always opt to serve his sentence rather than accept probation.

We feel that the legislature intended the "reasonably related" language of G.S. 15A-1343(b)(17) to serve as a check on the discretion of judges in devising conditions of probation. Where, as here, the judge elects to impose one of the conditions enumerated by the statute, no such check is needed since our legislature has deemed all of these conditions "appropriate" to the rehabilitation of criminals and their assimilation into law-abiding society.

Defendant next argues that the trial court's admonition of one of defendant's witnesses with regard to the penalty for perjury was prejudicial error. While such admonitions should not be issued lightly, defendant has failed to show any prejudice since the witness in no way altered his story, but persisted in corroborating defendant's testimony, and since the judge, not a jury, served as fact-finder.

Defendant contends the court also erred in failing to state in its judgment that it considered alternatives to revoking defendant's probation. We find nothing in the wording of G.S. 15A-1344(d) to indicate that such a finding is required.

We have examined defendant's remaining assignment of error and find it to be wholly without merit.

The order revoking defendant's probation is

Affirmed.

MORRIS, C. J., and BECTON, J., concur.