State v. Sellars

301 S.E.2d 105 (1983)

STATE of North Carolina
v.
Gina SELLARS.

No. 823SC764.

Court of Appeals of North Carolina.

April 5, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Guy A. Hamlin, Asheville, for the State.

Office of the Public Defender by William F. Ward, III, New Bern, for defendant-appellant.

JOHNSON, Judge.

The issue presented for review in this case is whether the trial judge made proper findings with respect to whether the defendant has violated, without lawful excuse, a valid condition upon which her sentence was suspended.

In a probation revocation hearing, our Courts have continuously held that a suspended sentence may not be activated for failure to comply with a term of probation unless the defendant's failure to comply is willful or without lawful excuse. State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958); State v. Huntley, 14 N.C.App. 236, 188 S.E.2d 30 (1972); State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1971). The mere finding of fact by the trial judge that the defendant had failed to comply, and that the fact of noncompliance required revocation of probation is insufficient to support the judgment putting the suspended sentence into effect. State v. Robinson, supra, 248 N.C. at 287, 103 S.E.2d at 380.

Following Robinson, this Court has required the presiding judge to make findings of fact which are definite and not mere conclusions. State v. Huntley, supra; State v. Foust, supra. In State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974) the burden was placed on the defendant to go forward with evidence as to whether his failure to meet the conditions of sentence suspension was without lawful excuse. This Court stated that once the defendant goes forward with evidence demonstrating his inability to meet the condition of probation, he is entitled to have his evidence considered and evaluated. Further, that upon review, mere conclusions will not support a revocation of probation for the reason that it will not be "clear whether the trial judge proceeded under an erroneous assumption that the fact of failure to comply required revocation of probation, or whether he considered defendant's evidence and found that defendant had offered no evidence worthy of belief to justify a finding of a legal excuse for failure to comply with the judgment." 21 N.C.App. at 321, 204 S.E.2d at 188. Accord State v. Smith, 43 N.C.App. 727, 259 S.E.2d 805 (1979). In Smith this Court made a final refinement upon the findings of fact requirement by stating, "the defendant is entitled to have the trial judge make findings of fact which will clearly show that he has considered and evaluated [the defendant's] evidence." 43 N.C.App. at 732, 259 S.E.2d at 808.

In the case under review, the defendant offered evidence which tended to show that she was financially unable to comply with the judgment due to her repeated hospitalizations for mental and physical health problems throughout the period in question. This evidence also tended to establish defendant's excuse for noncompliance with the other conditions of her probation. The trial judge's purported "findings of fact" merely restate the allegations of the violation report without demonstrating the judge's evaluation of the uncontradicted evidence of the defendant as to her health problems and her extensive stays in various hospitals.

Following Young and Smith the defendant is entitled to have the trial judge make findings of fact which will clearly show that he has considered and evaluated the evidence. The order under review fails to do this.

The order revoking the probation is vacated and the cause is remanded for a new hearing on the violation report.

New hearing.

HEDRICK and EAGLES, JJ., concur.