State v. Harris

HEDRICK, Judge.

The record on appeal contains none of the evidence heard in the district court on 6 June 1974 or in the superior court on 3 September or 25 November 1974. Five of the six exceptions noted in the record appear in the transcript of the testimony of the probation officer at the 5 December 1974 hearing in the superior court before Judge Snepp. However, none of these exceptions is based on any proceeding, ruling, or order of the court and presents no question for review. The only other exception in the record appears to be to the order of Judge Snepp dated 5 December 1974 revoking the defendant’s probation and activating the prison sentence imposed at the 24 May 1973 Session of District Court held in Mecklenburg County. This exception presents the face of the record proper for review. Review is limited, however, to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment and whether the judgment is regular in form and supported by the verdict. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). An appeal alone, or an exception to the judgment does not present for review the findings of fact or the sufficiency of the evidence to support them. Lamb v. McKibbon, 15 N.C. App. 229, 189 S.E. 2d 547 (1972).

Defendant first contends the “trial court erred in failing to arraign the defendant prior to revoking his probation.”.

“A proceeding to revoke. probation is not a criminal prosecution, and we have no statute in this State requiring a formal trial in such a proceeding. Proceedings to revoke probation are often regarded as informal or summary.” State v. Hewett, 270 N.C. 348, 353, 154 S.E. 2d 476, 479 (1967).

The record discloses that the defendant was present in court and represented by counsel when the district attorney announced that the defendant was charged with a violation of the terms and conditions of his probation. This assignment of error has no merit.

By assignments 6f error two, three, and four, defendant contends that: (1) “The trial court erred in entering judgment where no written notice of. the grounds upon which revocation of the defendant’s probation was prayed was served on the defendant.” ; (2) “The failure of the State to give notice to defendant of the charges against him a reasonable time in advance of trial violated defendant’s constitutional right to due process of law'.”; and (3) “The superior court lacked jurisdiction to hear the State’s plea for revocation where the proceedings in the district court were void for lack of notice to the defendant.” Each of these contentions is without merit simply because the record discíoses that the defendant received notice within the meaning of G.S. 15-200.1 when the defendant was arrested on 24 February 1974 by an officer of the Marion Police Department pursuant to an “authority to arrest” signed by the probation officer stating that the defendant had violated the terms and conditions of his probation by failing to pay court costs, failing to remain gainfully employed, and by being convicted of the offense of driving under the influence. State v. Dawkins, 262 N.C. 298, 136 S.E. 2d 632 (1964) ; State v. Noles, 12 N.C. App. 676, 184 S.E. 2d 409 (1971). While the officer making the return did not specifically state that the-“authority to arrest” was “served” on the defendant, he did state that the “authority to arrest” was “Executed.” Since the defendant appeared at the hearing and was represented by counsel pursuant to the execution of the “authority to arrest,” it is obvious he had notice within the meaning of the statute. Furthermore, the defendant made no motion for a bill of particulars at the hearing in the district court, nor did he except to the judge’s finding that he had notice.

By his sixth assignment of error, defendant contends “[t]he evidence presented was insufficient to support a finding that the defendant had violated the terms and conditions of a probation judgment.” As hereinbefore pointed out, the record contains only the evidence adduced at the hearing on 5 December 1974. Because all of the evidence is not before us and because the defendant did not except to any of the findings of fact, the question of the sufficiency of the evidence to support the findings is not presented. However, we have reviewed the findings of fact made by Judge Snepp and hold that the findings support the.conclusions that the defendant has wilfully violated the terms and conditions of his probation and that the conclusions support the order executing the jail sentence imposed. See State v. Young, 21 N.C. App. 316, 204 S.E. 2d 185 (1974). The order appealed from is

Affirmed.

Chief Judge Brock and Judge Parker concur.