State v. Cross

Mallard, C.J.

Defendant contends that the court abused its discretion in revoking the probation of the defendant and placing the sentence heretofore suspended into immediate effect without hearing any competent evidence relating to the violation of the conditions of probation.

The conviction of the defendant on the forgery charge has been (as of this date) reversed by this Court. If the finding of the trial judge that the defendant had violated the conditions of the probation judgment was based solely upon his being found guilty of this violation of the criminal law, the judgment of revocation would have to be reversed. State v. Glenn, 251 N.C. 160, 110 S.E. 2d 794; State v. Harrelson, 245 N.C. 604, 96 S.E. 2d 867.

Where a defendant complies with the valid conditions of a judgment placing him on probation and suspending the execution of a sentence the suspension should stand. But probation or suspension of sentence comes as an act of grace to one convicted of a crime,, and not as a matter of right. State v. Duncan, 270 N.C. 241, 154 S.E. 2d 53; State v. Hewett, 270 N.C. 348, 154 S.E. 2d 476. In this case the judge found that the defendant had violated another valid condition of the probation judgment in that he had wilfully failed to work at suitable employment.

There was ample competent evidence upon which to base the finding by the trial judge that the defendant had wilfully failed to work at suitable employment. There is nothing to show any abuse of discretion by Judge McConnell in the entry of the judgment ordering the prison sentence into immediate effect.

The judgment revoking probation herein is affirmed.

Affirmed.

Campbell and MoRris, JJ., concur.