State v. Fields

182 S.E.2d 213 (1971)

11 N.C. App. 708

STATE of North Carolina v. William David FIELDS.

No. 7127SC359.

Court of Appeals of North Carolina.

July 14, 1971.

*214 Atty. Gen. Robert Morgan and Staff Atty. Edward L. Eatman, Jr., Raleigh, for the State.

William G. Holland, Gastonia, for defendant appellant.

MALLARD, Chief Judge.

The defendant's contention that the evidence was insufficient to support the finding that the defendant had wilfully and intentionally violated the terms of the probationary judgments is without merit.

Defendant contends that the sentence for non-support should run concurrently with the other sentences. The Attorney General does not disagree. When the defendant was sentenced on the charge of non-support of his minor children, the trial judge did not provide that the sentence was to run consecutively. In the case at bar separate sentences were pronounced on each of the three charges. In each of the sentences the defendant was sentenced to "Gaston County Jail, to be assigned to work under the supervision of the State Department of Correction of North Carolina." We hold that the six-months sentence on the non-support charge runs concurrently with the other sentences. See G.S. § 15-6.2. In State v. Efird, 271 N.C. 730, 157 S.E.2d 538 (1967), the Supreme Court said:

"Separate judgments, each imposing a prison sentence, were pronounced. Each judgment is complete within itself. Absent an order to the contrary, these sentences run concurrently as a matter of law."

We do not interpret the provisions of G.S. § 15-200 (providing that the judge "shall proceed to deal with the case as if there had been no probation or suspension of sentence") as statutory authority for the judge, at a probation revocation hearing, to order the sentence imposed by the trial judge to run consecutively with some other sentence unless the trial judge ordered it at the time the sentence was imposed. To do so would permit the hearing judge to increase the severity of the punishment imposed by the trial judge.

Also in G.S. § 15-200.1, relating to appeals from a probationary or suspended sentence revocation of a court inferior to the superior court, there appears the following language:

"Upon its finding that the conditions were violated, the superior court shall enforce the judgment of the lower court unless the judge finds as a fact that circumstances and conditions surrounding the terms of the probation and the violation thereof have substantially changed, so that enforcement of the judgment of the lower court would not accord justice to the defendant, in which case the judge may modify or revoke the terms of the probationary or suspended sentence in the court's discretion."

*215 In the case at bar there is no finding as a fact by Superior Court Judge Thornburg that circumstances and conditions surrounding the terms of the defendant's probation and the violation thereof have substantially changed so that the enforcement of the judgment of the trial judge would not accord justice to the defendant. There was no factual basis for any change in the sentence imposed by the trial judge. Therefore, it was error for Judge Thornburg, after finding that the conditions were violated, to do anything other than "enforce the judgment of the lower court." We do not reach or decide the question as to whether, under proper findings, the word "modify" in this statute is authority for a judge, after a revocation hearing, to increase the punishment. Suffice to say, in Webster's Third New International Dictionary (1968), "modify" means "to make more temperate and less extreme: lessen the severity of: MODERATE."

Defendant's assignment of error "that it is cruel and unusual punishment for the State of North Carolina not to furnish the defendant, who is an indigent, an appearance bond in the amount set by the Court" is overruled.

The commitment issued in case no. 69-CR-21587 is ordered stricken, and this cause is remanded to the Superior Court of Gaston County with instructions that an order issue directing that the sentence in case no. 69-CR-21587 is to run concurrently with the sentence imposed in the case bearing docket no. 69-CR-18245.

There is no error in the cases bearing docket no. 69-CR-18245 and docket no. 69-CR-17848.

Remanded with directions.

CAMPBELL and HEDRICK, JJ., concur.