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State v. Bowens4/19/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Defendant appeals from the judgment revoking his probation and activating his suspended prison sentence.
On 13 June 2002, defendant was found guilty of driving while impaired. He received a suspended sentence of two years' imprisonment and was placed on supervised probation for twenty-four months.
A report filed on 17 July 2003 charged defendant with the following probation violations: (1) failure to attend six scheduled office visits with his probation officer between 18 February 2003 and 1 July 2003, or to have any contact with his probation officer since 1 April 2003; (2) failure to pay $335 in court costs; (3)failure to pay $180 in supervision fees; (4) failure to provide proof of full-time employment since 21 January 2003; and (5) failure to enroll in substance abuse treatment at Pitt County Mental Health Services or to complete the 90 hours of court-ordered treatment. On 15 September 2003, the district court found defendant in willful violation of the conditions of his probation as alleged in the violation report, and entered judgment revoking probation and activating his suspended sentence. Defendant appealed to superior court.
At the beginning of the probation hearing, defense counsel admitted all of the allegations contained in the 17 July 2003 violation report. By way of explanation, defendant testified that he suffered from seizures, "mini-strokes" and high blood pressure, necessitating his use of daily medication which rendered him "comatose." As a result of his illness, defendant claimed he was unable to secure employment but hoped to satisfy the monetary conditions of his probation by obtaining disability payments. Defendant further stated that he spent his time "running back and forth to the hospital[,]" and that he had missed his appointments with his probation officer because he was "sick" and "probably had a seizure or something like that." Defendant's counsel informed the court that defendant had paid $445 toward his monetary obligations but had been unable to work since 28 February 2003. He introduced receipts reflecting that defendant was transported to a hospital by ambulance on four occasions in 2003.
Defendant's probation officer advised the court that defendant"has basically not done a thing on probation. He wouldn't report to see me." The officer asked the court to revoke defendant's probation.
At the conclusion of the hearing, the trial judge announced his finding of "a willful violation of [defendant's] probation[.]" On the first page of his written judgment, the judge marked the box indicating his conclusion that defendant violated a valid condition of his probation, " ased upon the Findings of Fact set out on the reverse side" of the judgment. It appears, however, that the judge inadvertently failed to complete the "FINDINGS" section on the second page of the judgment form. The judgment thus contains no findings of fact regarding the nature of defendant's violations or the willfulness thereof.
On appeal, defendant challenges the trial court's failure to make any findings of fact supporting the revocation of his probation. He notes the judgment entered by the court does not identify which conditions of probation were violated, contains no findings as to the willfulness of the violations, and does not demonstrate a consideration of defendant's evidence of his inability to comply with the conditions of his probation.
In
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