State v. Huntley

188 S.E.2d 30 (1972) 14 N.C.App. 236

STATE of North Carolina
v.
Larry James HUNTLEY.

No. 7226SC319.

Court of Appeals of North Carolina.

April 26, 1972.

Atty. Gen. Robert Morgan and Associate Atty. Gen. Ann Reed, for the State.

Lila Bellar, Charlotte, for defendant appellant.

HEDRICK, Judge.

In his brief defendant's counsel asserts: "The court may not lawfully require an indigent defendant to reimburse the State for counsel fees paid on his behalf." Citing In Re Allen, 71 Cal. 2d 388, 78 Cal. Rptr. 207, 455 P.2d 143 (1969), the defendant contends that a probation condition requiring him to reimburse the State for the cost of his court-appointed counsel is an infringement on his constitutional right to counsel. In a similar case, State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1972), this Court rejected the same contention and held that as a condition of probation an indigent defendant could be required to reimburse the State for fees paid his court-appointed counsel.

Although we find the conditions defendant is charged with having violated to be valid, the proceeding must be remanded for the court did not make findings of fact sufficient to support its conclusion that the defendant's failure to make the payments set out in the probation judgment was willful or without lawful excuse. The court merely concluded that the defendant had willfully violated his probation condition by not making the payments and that he was in arrears $125. In State v. Foust, supra, the Court said: "* * * Has he had the financial ability to comply with the judgment at any time since he became obligated to pay? If not, has his continued inability to pay resulted from a lack of reasonable effort on his part or from conditions over which he had no control? These are essential questions which must be answered by appropriate findings of fact before the court can determine whether defendant's failure to comply was willful or without lawful excuse."

The judgment activating the sentence is vacated and the proceeding is remanded for further hearing in order that the judge may determine, by appropriate findings of fact, whether the failure of defendant to make the required payments was willful or without lawful excuse. The judge's findings of fact should be definite and not mere conclusions. State v. Foust, supra; State v. Caudle, 7 N.C.App. 276, 172 S.E.2d 231 (rev'd on other grounds, 276 N.C. 550, 173 S.E.2d 778); State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958).

Vacated and remanded.

BROCK and VAUGHN, JJ., concur.