State v. Setzer

242 S.E.2d 509 (1978)

35 N.C. App. 734

STATE of North Carolina v. Robert Boyce SETZER.

No. 7725SC832.

Court of Appeals of North Carolina.

April 4, 1978.

*510 Atty. Gen., Rufus L. Edmisten by Associate Atty., R. W. Newsom, III, Raleigh, for the State.

Isenhower & Long by David L. Isenhower, Newton, for defendant.

MARTIN, Judge.

Defendant contends that the condition he is accused of violating is invalid because it is unreasonable and is imposed for an unreasonable length of time.

In support of this contention defendant first argues that the condition that defendant not loiter in or around the courthouse or any other public building unless on business is void in that it amounts to banishment. We disagree.

It is well settled law that "[i]n North Carolina a court has no power to pass a sentence of banishment; and if it does so, the sentence is void." State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922 (1953); State v. Culp, 30 N.C.App. 398, 226 S.E.2d 841 (1976). In Culp this Court stated, quoting from 8 C.J.S. Banishment, p. 593 (1962), that "[t]he concept of banishment has been broadly defined to include orders compelling individuals `. . . to quit a city, place, or country, for a specific period of time, or for life.'" In the instant case, defendant was clearly not compelled to "quit" the courthouse and other public *511 buildings; rather, the condition imposed merely limited his frequenting of these places to those occasions on which he had business.

Defendant further argues that the subject condition is unreasonable for the reason that it bears no reasonable relationship to the offense for which defendant was convicted and thus, does not tend to further his reform.

As a general proposition, it is true that the primary purpose of a suspended sentence is to further the reform of the defendant. State v. Smith, 233 N.C. 68, 62 S.E.2d 495 (1950). We are of the opinion that the condition complained of in the instant case does not contravene this principle. The conduct which precipitated defendant's troubles in the first instance was his breaking into a courtroom. He was thereafter convicted of unlawful entry. The overriding concern in defendant's situation was that he used public buildings as temporary abodes. We can perceive of no condition more clearly related to preventing this unlawful use of public property than to limit defendant's access to these buildings to business purposes only.

Defendant also argues that the subject condition is imposed for an unreasonable length of time. We disagree. The five (5) year suspension period is within the statutory limit fixed by G.S. 15-200, and on the facts of this case, we cannot find that it was unduly burdensome. Defendant's first assignment of error is overruled.

In the only other assignment of error which merits our attention, defendant argues that the trial court's finding of fact fails to support its conclusion that defendant violated the subject condition. Specifically, defendant contends that the court failed to find that defendant was "loitering."

Regarding the necessity of specific findings of fact upon revocation of a suspended sentence, our Supreme Court, in State v. Davis, 243 N.C. 754, 92 S.E.2d 177 (1956), stated:

". . . [W]here the finding of the court does not state wherein a defendant has violated the conditions and there is a question as to the validity of one or more of the conditions imposed, the defendant is entitled to have the cause remanded for a specific finding as to wherein he has violated the conditions upon which the sentence was suspended. It is only by such a finding that a defendant may be able to test the validity of a condition he believes to be illegal and void in the event the purported violation is based on such condition."

In accord is State v. Langley, 3 N.C.App. 189, 164 S.E.2d 529 (1968).

The specificity contemplated by these decisions requires the trial judge to go beyond the summary finding that a defendant has "willfully violated" the terms of his suspended sentence. The findings should refer to the manner in which defendant has violated conditions imposed. See State v. Langley, supra. In the instant case, the findings of the court upon which the revocation of defendant's suspended sentence is based do not contain the word "loiter." However, the court's finding that defendant was in the jail building on the night in question and was not on any lawful business at that time was sufficient, in point of specificity, for the court to determine that this conduct violated the condition imposed. We are bound by this finding. Accordingly, we overrule this assignment of error.

We have carefully reviewed the remaining assignments of error and find them to be without merit.

The judgment of the trial court revoking defendant's suspended sentence is affirmed.

Affirmed.

PARKER and ARNOLD, JJ., concur.