State v. Byrd

208 S.E.2d 216 (1974)

23 N.C. App. 63

STATE of North Carolina v. Henry Clifford BYRD, Sr.

No. 7418SC630.

Court of Appeals of North Carolina.

September 18, 1974.

*218 Atty. Gen. Robert Morgan by Associate Atty. John R. Morgan, Raleigh, for the State.

Asst. Public Defender Dallas C. Clark, Jr., Greensboro, for defendant appellant.

CAMPBELL, Judge.

The defendant contends that the trial court erred in finding that the defendant wilfully failed to pay into court the monies ordered under the probationary judgments imposed in both cases and that the court erred in ordering revocation of defendant's probationary sentences. By way of a motion filed 21 August 1974 with the Court of Appeals, the defendant argues that the judgment of Judge Long in the probation revocation hearing should be arrested in that it sought to impose execution of the suspended sentences at the end "of any prison sentence now being served by the defendant." Between the time of the original judgments suspending sentence and the judgment putting the sentences into effect the defendant had been convicted of larceny.

The first contention of the defendant-appellant is directed toward the finding by Judge Long "that between July 18, 1973, and September 17, 1973, the defendant was able-bodied and worked part-time but wilfully failed to pay restitutionary installments as ordered by the court." Discussion of this assignment of error is unnecessary. The defendant admitted in open court that he had changed residences without the written consent of his probation officer in clear violation of his probation. In fact, the verified report of Officer Wilson discloses that he was completely unaware of the defendant's whereabouts for almost four months.

Under G.S. § 15-199(3) and (6), the legislature has empowered the court to impose conditions of probation requiring the probationer to report to the probation officer as directed and remain within a specified area. There can be little doubt that the residency and reporting requirements were valid.

Furthermore, "[p]robation or suspension of sentence comes as an act of grace to one convicted of . . . a crime." State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57, citing Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1934). All that is required is that there be enough evidence to reasonably satisfy the judge in his sound discretion that the defendant has violated a valid condition of probation. It is well established that "[t]he breach of any single valid condition upon which sentence was suspended will support an order activating the sentence." State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973), citing State v. Seagraves, 266 N.C. 112, 145 S.E.2d 327 (1965). There was no abuse of discretion here.

The propriety of the defendant-appellant's motion in arrest of judgment filed just six days before oral argument is based on the presence of some fatal error on the face of the record proper. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972). The defendant contends that a fatal error appears in the judgment which is part of the record proper, so the real problem involves the question of fatal error. That question can only be answered by looking to the authority of the judge in the probation revocation hearing, specifically, whether he can execute a sentence suspended in a prior trial and have it run consecutively with another sentence imposed in a subsequent trial.

*219 In the present case, Judge Long sought to execute the sentence at the prior trial by having it run consecutively with a sentence imposed at a subsequent trial. This he could not do. State v. Fields, 11 N.C.App. 708, 182 S.E.2d 213 (1971). It is therefore ordered that judgment of probation revocation No. 73CR22434 be modified to provide that the sentence begin to run immediately.

Affirmed as modified.

PARKER and VAUGHN, JJ., concur.