State v. Pitts

25 N.C. App. 548 | N.C. Ct. App. | 1975

PARKER, Judge.

By his single assignment of error appellant seeks to challenge the sufficiency of the evidence to support the court’s findings. This assignment lacks merit. The evidence is amply sufficient to support the court’s findings of fact. Moreover, appellant failed to note an exception to any particular finding of fact, and, indeed, made no exception whatever throughout the record on this appeal. Although the appeal itself constitutes an exception to the judgments appealed from, an appeal alone does not present for review the sufficiency of the evidence to support the court’s findings of fact. 1 Strong, N. C. Index 2d, Appeal and Error, § 26. Our review in this case is limited, therefore, to whether error of law appears on the face of the record. This includes the question whether the facts found support the judgments appealed from and whether the judgments are regular in form, but does not present for review the sufficiency of the evidence to support the findings.

In the judgments appealed from the court found as a fact that defendant had willfully failed to comply with valid conditions upon which his sentences had been suspended. This was more than was required. “ [A] 11 that is required to revoke a suspension of a sentence in a criminal case, and to put the sentence into effect is that the evidence shall satisfy the judge in the exercise of his sound discretion that the defendant has violated, without lawful excuse, a valid condition upon which the sentence was suspended and that the judge’s findings of fact in the exercise of his sound discretion are to that effect.” State v. Robinson, 248 N.C. 282, 287, 103 S.E. 2d 376, 380 (1958). In the present case the court supported its findings as to willfulness by making detailed findings of fact, including findings as to defendant’s continued failure to make the support payments specified as a condition of suspension, a finding that throughout the period in question he had been gainfully employed and earning money at a regular weekly rate, and a finding that his “only excuse” for not complying with the court’s orders was that the mother of the children would not accept money from him and would not allow him to see the children. As the court noted, defendant had been ordered to make payments to the office of the clerk of superior court, not to the children’s mother, and the payments were to be for their benefit, not hers. Defendant’s “only excuse” was not a lawful excuse, and the court’s detailed findings fully support its judgments that the suspended sentences should be put into effect.

Although not discussed in the briefs, we note from the record that when the- sentences in the two cases were first imposed on 2 April 1971, the trial court did not provide that the sentences were to run consecutively. Each judgment was complete within itself. Absent a provision to the contrary in the judgments in which the sentences were originally imposed, these sentences run concurrently as a matter of law. State v. Efird, 271 N.C. 730, 157 S.E. 2d 538 (1967). The court had no authority in the revocation hearing to order that they run consecutively. State v. Fields, 11 N.C. App. 708, 182 S.E. 2d 213 (1971).

The result is:

In Case No. 71-CR-7523, the judgment is

Affirmed.

In Case No. 71-CR-7524, the cause is remanded to the Superior Court in Forsyth County with directions that the judgment and commitment in that case be modified by striking therefrom the language “this sentence to run at the expiration of the sentence imposed in case number 71CR7523.”

Remanded with directions.

Judges Hedrick and Clark concur.