State v Hudgins

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA10-1600 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 STATE OF NORTH CAROLINA v. Buncombe County Nos. 09 CRS 2818, 65343 10 CRS 97 BARRY WILLIAM HUDGINS Appeal by Defendant from judgment entered 3 August 2010 by Judge Christopher M. Collier in Buncombe County Superior Court. Heard in the Court of Appeals 6 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Charlotte Gail Blake for Defendant-appellant. HUNTER, JR., Robert N., Judge. Barry William Hudgins ( Defendant ) appeals from judgment entered upon his conviction and guilty plea and argues the trial court erred by (1) failing to dismiss the charges after Defendant raised a speedy trial claim, and (2) entering an award of restitution based on insufficient evidence and in the form of a civil judgment. We find no error in part and reverse and remand the determination of restitution. -2I. Factual and Procedural History On 4 March 2009, Defendant was indicted for breaking and entering a motor vehicle, felony larceny, and habitual felon status. On 20 April 2009, Defendant failed to appear in court. Defendant was subsequently indicted on 3 August 2009 for failure to appear on a felony. Another habitual felon indictment was issued on 1 March 2010. The matter came on for trial on 3 August 2010. convicted Defendant of failure to appear. A jury Defendant then entered an Alford plea to breaking and entering a motor vehicle, larceny, and having attained habitual felon status. offenses were consolidated for judgment, and All four Defendant was sentenced to an active term of a minimum of 90 months to a maximum of 117 months imprisonment. II. Jurisdiction and Standard of Review As Defendant appeals from the final judgment of a superior court, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). We review de novo the trial court s failure to dismiss Defendant s charges after Defendant raised his right to a speedy trial, because under the Sixth Amendment of the United States Constitution and by Article I, section 18 of the North Carolina -3Constitution, trial. Defendant is guaranteed the right to a speedy Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1 (1967). On appeal, we consider de novo whether the restitution order was supported sentencing. by State v. evidence McNeil, adduced 707 S.E.2d at trial 674, or 684 at (2011) (citations and quotation marks omitted). III. Analysis A. Speedy Trial By his first argument, Defendant contends the trial court erred by failing to grant his motion to dismiss all the charges where he raised a claim that his right to a speedy trial was violated. Prior to motions, including Defendant asserted trial, a Defendant motion numerous for filed multiple appropriate arguments including pro relief his se where case had been subjected to undue delay and his right to a speedy trial had been violated. Defendant also requested the charges against him be dismissed. On the day of trial prior to jury selection, the trial Relief. court Neither reviewed Defendant Defendant s nor Motion defense for counsel Appropriate specifically mentioned Defendant s concern about a speedy trial. court explained that this motion was premature The trial and any -4relevant trial. arguments should be made during the course of the Defendant made several other motions, including a motion to dismiss, all of which were denied. At the close of all the evidence, Defendant renewed his Motion to Dismiss, and the trial court denied the motion. The trial court never ruled on Defendant s motion for appropriate relief. The State cites State v. Grooms for the proposition that a defendant who has legal representation cannot also file motions on his own behalf or attempt to represent himself. 50, 61-62, 540 S.E.2d 713, 721 (2000). 353 N.C. The State further writes in its brief [a]ccording to our Supreme Court, defendant s own motions were a nullity, and are not subject to appellate review. Since Grooms, our Court has stated, in both State v. Howell and State v. Williamson, [n]owhere in Williams or Grooms does our Supreme Court state that a trial court cannot consider a motion filed by a defendant personally when the defendant is represented by counsel, only that it is not error for the trial court to refuse to do so. State v. Howell, COA10 476, 2011 WL 1645851 at *2 (May 3, 2011); State v. Williamson, COA10-883, 2011 WL 2207582, at *4 (June 7, 2011) (emphasis added). A trial court has discretion to consider a represented defendant s pro -5se motions and is not precluded from considering a motion on the merits. However, here the trial court never ruled on Defendant s motion for appropriate before us on appeal. relief. The motion is not properly We therefore dismiss this assignment of error without prejudice for the Defendant to renew the motion for appropriate relief before the trial court. B. Restitution Next, Defendant contends the trial court erred in ordering him to pay restitution in an amount unsupported by sufficient evidence and without taking financial circumstances. into consideration Defendant s He also argues the court erred in ordering restitution be entered as a civil judgment against him. He argues the court mistakenly relied on N.C. Gen. Stat. § 15A1340.38 (2009), which he asserts does not apply to this case. We agree that the amount of restitution ordered by the trial court is not fully supported by the evidence and that the court erred in ordering restitution to be entered as a civil judgment. A court may order a Defendant to pay restitution to a victim of a crime to compensate for damages and losses pursuant to N.C. Gen. Stat. §§ 15A-1340.34 and 15A-1340.35 (2009). In so doing, the court shall consider the Defendant s assets, income, -6ability to earn, whether he or she has any obligation to support dependents, and any other matters that pertain to his or her ability to make restitution. N.C. Gen. Stat. § 15A-1340.36(a) (2009). The amount must be limited to that supported by the record. Id. A trial court is not required to make findings of fact or conclusions of law regarding the amount of restitution, but must consider the statutory factors before deciding on an amount. State v. Mucci, 163 N.C. App. 615, 626, 594 S.E.2d 411, 419 (2004). Here, the only reference made to the amount of restitution was the prosecutor s request for restitution for numerous items, cash, jewelry, and gold coins in the amount of $15,700. It has been established, however, that a prosecutor s unsworn statement does not constitute evidence and is not sufficient to support an order of restitution. State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007). Therefore, the order of restitution in this case is not supported by any evidence and must be remanded for a new hearing. We further Defendant s conclude resources, the trial earning court ability, regarding his capacity to make restitution. failed or to consider other factors On remand, if the trial court decides to impose restitution, the court shall take -7into consideration these factors as required by section 15A1340.36. Finally, in the interest of avoiding a similar issue after remand, we decision address to have Defendant s the restitution argument order that the entered judgment is not appropriate in this case. as court s a civil Where a defendant is sentenced for an offense for which the victim is entitled to restitution under the Crime Victims Rights court must enter an award of restitution. 15A-1340.34(b) (2009). This category Act, the trial N.C. Gen. Stat. § of restitution, if in excess of $250.00, may be entered in the same manner as a civil judgment pursuant to N.C. Gen. Stat. § 15A-1340.38(a) (2009). Here, however, section none of 15A-830(a)(7) Defendant s (2009), the offenses relevant are listed provision of in the Crime Victims Rights Act. Therefore, section 15A-1340.38(a) does trial not restitution apply, to and be the entered as a court civil erred in judgment. ordering The civil judgment is vacated. IV. Conclusion We conclude the trial court did not err when it failed to dismiss Defendant s charges after Defendant violations of his right to a speedy trial. raised claims of We further conclude -8the restitution awarded in this case is not supported by any evidence and must be remanded for a new hearing. Lastly, we find the trial court erred in ordering restitution to be entered as a civil judgment and vacate the trial court s order. Remanded in part; civil judgment vacated. Judges MARTIN and THIGPEN concur. Report per Rule 30(e).

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