State v. King

34 N.C. App. 717 | N.C. Ct. App. | 1977

MARTIN, Judge.

Defendant contends the court erred in revoking his probation based upon the unsigned, unverified violation report of the probation officer and cites as authority State v. Thomas, 236 N.C. 196, 72 S.E. 2d 525 (1952). In Thomas, the probation revocation was based solely upon the defendant’s plea of nolo contendere to charges amounting to a violation of the condition of his probation judgment, evidence of this plea appearing in the unverified report of the probation officer. Neither the defendant nor the probation officer presented other evidence at the hearing. The Court held that the plea of nolo contendere could not be used against the probationer as an admission of the violation, but that “proof of such violation, if any, must be made independently of such plea. . . .” In so holding, the Court observed that “the suspended sentence should not be invoked on the unverified report of the probation officer.” Clearly this case is not controlling authority on the question before this Court. In the instant case, the probation officer appeared before the court and testified under oath to substantially the same facts as were contained in his unsigned report; thus, the reliability of this information was subject to cross-examination. Moreover, defendant was afforded the opportunity to participate and, in fact, did so by testifying and putting on additional evidence at the hearing. Upon conclusion of the hearing in the case sub judice, the court clearly had sufficient competent evidence before it on which to base its finding. See State v. Langley, 3 N.C. App. 189, 164 S.E. 2d 529 (1968). Defendant’s first assignment of error is overruled.

In his second assignment of error, defendant contends that the court erred in revoking his probation for the reason that the court failed to consider or evaluate defendant’s evidence of his inability to make the payments required by his probationary judgment. In support of this contention, he relies on the court’s statement at the conclusion of the hearing directing the probation officer to “prepare an order revoking the probationary sentence and placing the prison sentence into effect instanter.” We find no merit in this contention.

Defendant cites as authority for this contention State v. Young, 21 N.C. App. 316, 204 S.E. 2d 185 (1974). In that case, the probationer offered evidence which, if believed, showed that he was unavoidably without the means to make required payments. Because the trial court found only that the probationer had wilfully violated the terms and conditions of his probation, this Court held that it was manifestly unclear whether the trial court had properly considered and evaluated the probationer’s evidence, and therefore, ordered that a new hearing be had. We find the narrow holding of the Young case to be inapposite to the facts of the instant case as defendant’s evidence disclosed no “unavoidable inability” to pay. Even if the court found defendant’s evidence to be true, it could still find that no lawful excuse existed for defendant’s failure to make payments. In addition, the trial court affirmatively indicated that it reached its determination “[f]rom the evidence presented. . . .” This assignment of error is overruled.

Affirmed.

Chief Judge BROCK and Judge CLARK concur.