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State v. Clifton3/4/1997
ant's motion to dismiss.
The third issue is whether the trial court erred in ordering defendant to pay $3,000.00 in restitution for funeral expenses to the father of James Clifton where defendant failed to object to the order of restitution and where there was nothing in the record to support a finding that any amount of restitution was due or to whom it might be payable.
Generally, in order to preserve a question for appellate review a party must have presented the trial court with a timely objection or motion, stating the specific grounds for the ruling the party desired the court to make. N.C.R. App. P. 10(b)(1); see State v. Reid, 322 N.C. 309, 312, 367 S.E.2d 672, 674 (1988). Immediately after the trial court sentenced defendant and ordered her to pay restitution, the court asked defendant if there was anything further for the court. At that time defendant renewed her motion to dismiss. At no time prior to the court's order to pay restitution did the prosecution request restitution or present evidence supporting an order of restitution. Therefore, it appears that defendant had little if any opportunity to object specifically to the order to pay restitution. Despite defendant's failure to object, we review this order in our discretion pursuant to N.C.R. App. P. 2.
A trial court's award of restitution must be supported by competent evidence in the record. State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995); State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992); State v. Daye, 78 N.C. App. 753, 756, 338 S.E.2d 557, 560, affirmed, 318 N.C. 502, 349 S.E.2d 576 (1986). In Daye this Court stated that to justify an order to pay restitution, "there must be something more than a guess or conjecture as to an appropriate amount of restitution. Restitution is not intended to punish defendants, but to compensate victims. There is no predetermined fine or presumption of damages." 78 N.C. App. at 757-58, 338 S.E.2d at 561 (1986). After careful review of the record we find no evidence of the cost of James Clifton's funeral or who paid for it. Accordingly, we conclude that the trial court erred in ordering payment of restitution.
The final issue is whether the trial court erred in finding as an aggravating factor that defendant had a prior conviction punishable by more than sixty days and therefore improperly sentenced the defendant to a maximum term of ten years.
The weighing of factors in aggravation and mitigation is within the sound discretion of the sentencing court, and will not be disturbed upon appeal absent a showing of an abuse of discretion. State v. Abee, 60 N.C. App. 99, 298 S.E.2d 184 (1982), aff'd and modified on other grounds, 308 N.C. 379, 302 S.E.2d 230 (1983). G.S. 15A-1340.4(e) (1988) provides in pertinent part that prior convictions "may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction." The permissible methods of proof of prior convictions in G.S. 15A-1340.4(e) are permissive, not mandatory or exclusive. State v. Brewer, 89 N.C. App. 431, 436, 366 S.E.2d 580, 583, cert. denied, 322 N.C. 482, 370 S.E.2d 229 (1988). Here the trial court noted that North Carolina Rules of Evidence provide that evidence of a conviction is not admissible if the conviction has been pardoned; however, during a sentencing proceeding the rules of evidence are suspended. N.C.R. Evid. 609, 1101(b)(3). Here, the trial court took judicial notice of defendant's pardon of forgiveness for her 1979 conviction of accessory after the fact to robbery with a dangerous weapon and considered her 1979 conviction an aggravating factor during sentencing.
No decisions in North Carolina h
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