State v. Williams

VAUGHN, Judge.

Defendant’s principal argument appears to be that the probation revocation proceedings should have been dismissed because the conviction upon which the probation judgment was based was “null and void” in that there is no showing that defendant’s pleas of guilty were voluntarily, understandingly, and knowingly entered. The argument is without merit. The identical argument was made and answered in State v. Notes, 12 N.C. App. 676, 678, 184 S.E. 2d 409, 410 (1971), where the Court held that “[w]hen appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid.” A similar argument was made in State v. Cordon, 21 N.C. App. 394, 397, 204 S.E. 2d 715, 717 (1974), cert. den., 285 N.C. 592, 206 S.E. 2d 864, where this Court said that “[a] defendant on appeal from an order revoking probation may not challenge his adjudication of guilt.”

Defendant also contends that the Court erred in finding that he had violated one of the conditions of his suspended sentence by failing to pay his fine and costs as he was ordered to do. Defendant primarily argues that there was no factual finding that defendant has had the ability to comply with the judgment, and that there was no evidence that would have permitted such a finding. Although defendant testified at the hearing, he did not suggest to the court any reason for having failed to pay as required by the order.

“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.” State v. Young, 21 N.C. App. 316, 320-21, 204 S.E. 2d 185, 187 (1974).

It should be noted that this Court in Young disapproved earlier statements found in State v. Foust, 13 N.C. App. 382, 185 S.E. 2d 718 (1972), which were relied upon and quoted by defendant in the present appeal. Since there was evidence that defendant had failed to pay as required by the judgment and no evidence of defendant’s inability to pay, the finding that defendant wilfully and without just excuse violated the conditions of the probation judgment is supported by the record and must be affirmed.

We have considered defendant’s other arguments and conclude that no error has been disclosed that requires us to disturb the judgment from which defendant appealed. It is, therefore, affirmed.

Affirmed.

Judges Britt and Erwin concur.