State v. Smith

259 S.E.2d 805 (1979) 43 N.C. App. 727

STATE of North Carolina
v.
Willie L. SMITH.

No. 7912SC506.

Court of Appeals of North Carolina.

November 20, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Marilyn Y. Rich, Raleigh, for the State.

John Britt, Asst. Public Defender, Fayetteville, for defendant-appellant.

WELLS, Judge.

Defendant was represented at the probation and revocation hearing by the office of the Public Defender for the Twelfth Judicial District. Counsel for defendant has not brought forth any assignments of error. The brief for the defendant contains the following statement:

After reviewing the record on appeal and the applicable law, attorney for the appellant has been unable to determine that during the course of the probation revocation hearing prejudicial error was committed which would entitle the appellant to reversal or to a new hearing. However, attorney for the appellant requests the Court to review the record on appeal and in its wisdom determine if any prejudicial or reversible error was committed during the hearing.

We have reviewed the record on appeal and have determined that pursuant to the provisions of Rule 10(a) of the North Carolina Rules of Appellate Procedure, it is appropriate for us to review the question as to whether the judgment of the trial court is supported by appropriate findings of fact and conclusions of law.

The issue we 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 his sentence was suspended.

The "lawful excuse" rule has its genesis in State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958). In Robinson, Justice Parker carefully reviewed the existing law as it related to the requirements for activating a suspended sentence. The heart of the decision is found in the following two paragraphs:

After a diligent search we have found no case, and counsel in the case have referred us to none, which holds that a court cannot revoke a suspension of sentence in a criminal case, and enforce the sentence for a breach of the condition on the part of the defendant unless such breach is wilful. Based upon the reasoning and language of the cases we have cited above, it is our opinion that all that is required to revoke a suspension of a sentence in a criminal case, and to put the sentence into effect is that the evidence shall satisfy the judge in the exercise of his sound discretion that the defendant has violated, without lawful excuse, a valid condition upon which the sentence was suspended and that the judge's findings of fact in the exercise of his sound discretion are to that effect.

* * * * * *

The mere finding of fact by the judge "that the defendant has violated the terms of this suspended sentence, and has not made the weekly payments as provided, and on July 23, 1957 was in arrears in the sum of $379.00 under the terms of said judgment" is insufficient to support the judgment putting the six months jail sentence into effect.

248 N.C. at 287, 103 S.E.2d at 380.

Following Robinson, and obviously guided by it, this Court held in State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1972), that, before a court can determine whether a defendant's failure to comply with the terms of a suspended sentence or probationary judgment requiring the payment of money was wilful or without lawful excuse, two essential questions about the defendant must be answered with appropriate findings of fact. These questions are stated in Foust as follows: "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?" 13 N.C.App. at 387, 185 S.E.2d at 722.

Foust was followed in State v. Huntley, 14 N.C.App. 236, 188 S.E.2d 30 (1972) and in State v. Neal, 14 N.C.App. 238, 188 S.E.2d 47 (1972). Then, in State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974), this Court reconsidered the question. In Young, the Court distinguished Foust, Huntley, and Neal by placing the burden on the defendant to go forward with the evidence as to whether his failure to meet the conditions of sentence suspension was without lawful excuse. The following two paragraphs reveal the Court's reasoning in Young:

If, upon a proceeding to revoke probation or a suspended sentence, a defendant wishes to rely upon his inability to make payments as required by its terms, he should offer evidence of his inability for consideration by the judge. Otherwise, evidence establishing that defendant has failed to make payments as required by the judgment may justify a finding by the judge that defendant's failure to comply was willful or was without lawful excuse. We disapprove the principle announced in Foust, supra, and followed in Huntley and Neal, supra.

In the case presently under review, the defendant offered evidence which tended to show that he was unavoidably without the means to make payments as required by his probationary judgment. The trial judge, as the finder of the facts, is not required to accept defendant's evidence as true. However, in this case, it is not 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. Obviously, defendant is entitled to have his evidence considered and evaluated. Because it appears that this was not done, the order revoking probation is vacated and the cause is remanded for a new hearing upon the Report of the Probation Officer and the Bill of Particulars.

21 N.C.App. at 320-321, 204 S.E.2d at 187-188.

While it appears that the ruling in Young may not be entirely consistent with Robinson, we do not need to attempt to reconcile the two here. In the case at bar the defendant in fact offered extensive evidence as to his ability or inability to make the required payments, and following Young, the defendant is entitled to have the trial judge make findings of fact which will clearly show that he has considered and evaluated that evidence. The judgment under review here 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.

ARNOLD and WEBB, JJ., concur.