State v. Harris

PARKER, Judge.

In his brief appellant understandably raises no question as to that portion of Judge McLelland’s order of 15 February 1974 in which the court, ex mero motu, reduced defendant’s prison sentence to two years, which was the maximum sentence authorized by statute for the most serious of the offenses to which he had pled guilty. G.S. 20-28. Accordingly, on this appeal we express no opinion as to the procedure by which this correction in the sentence was accomplished.

In his brief, appellant contends that “it was not a condition of the defendant’s suspended sentence that he make monthly payments of $50.00 per month, but rather that he pay $700.00 during the term of his suspension under the direction of his probation officer,” and he submits that he was complying with the terms of his suspended sentence “in that he had made more than half of his total payment during approximately half of the period of suspension.” The probation judgment did not, however, as appellant now contends, direct that he pay the fine of $700.00 “during the term of his suspension under the direction of his probation officer,” but on the contrary, clearly directed that he pay the fine “as directed by the probation officer.” Further, the record clearly discloses that defendant had been “advised repeatedly by this officer to make regular payments on his court indebtedness of not less than $50.00 per month.” A written report containing that statement was served on defendant on 3 October 1972, some fifteen months prior to the hearing at which his probation was revoked. There can be no question that defendant clearly understood the rate at which he was to pay his fine.

Appellant’s remaining contention, that there was insufficient evidence to support the court’s finding that his violation of the terms of his probation was willful, is equally without merit. The evidence indicates that defendant had been employed at a number of jobs during the more than two and one-half years that his probation remained in effect and that he nevertheless failed to make any payment on his fine during the ten-month period preceding the revocation hearing.

The orders appealed from are

Affirmed.

Judges Campbell and Britt concur.