State v Odum
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-610 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. Gaston County Nos. 07 CRS 20169, 20171 YAKOTUS DIABLO ODUM Appeal by defendant from judgment entered 2 February 2011 by Judge Timothy S. Kincaid in Gaston County Superior Court. Heard in the Court of Appeals 28 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Bethany A. Burgon, for the State. John T. Hall for defendant. ELMORE, Judge. Yakotus court s Diablo judgment Odum revoking (defendant) his appeals probation. from the Defendant trial contends that the trial court 1) abused its discretion in finding that he willfully violated the monetary conditions of his probation, and 2) erred by finding six probation violations in its written judgment after finding only two violations in open court. affirm, but remand for correction of a clerical error. We -2On 29 July 2008, defendant pled guilty to two counts of conspiracy to commit robbery with a dangerous weapon. court imposed a term of twenty-nine to The trial forty-four months imprisonment, suspended the sentence, and placed defendant on thirty-six months of supervised probation. Defendant s probation was modified in September of 2009 and January of 2010 to impose more restrictive conditions. On 17 September 2010, defendant s probation officer filed a violation report alleging six violations, including two monetary violations. hearing on The 2 matter February came 2011. on for a probation At the start of violation the hearing, defendant admitted, through counsel, to some curfew violations and the two monetary violations. was behind on his monetary Defendant testified that he obligations, but claimed relative could pay $300.00 toward his arrearage. that a Defendant, however, did not offer any evidence of an excuse for his failure to satisfy the monetary obligations of his probation. After hearing the findings of the two evidence, violations of the trial monetary court made oral conditions. The trial court further found that [the defendant] has not offered any excuse or justification for being behind [on his monetary obligations]. He does have a relative that has the ability to -3pay a portion of the arrears today. The trial court revoked defendant s probation and activated the suspended sentence based on the two however, alleged violations. indicates in the The trial court s written judgment, that it violation found all report. six of the Defendant gave violations notice of appeal. On appeal, defendant s first argument is that the trial court abused its discretion by finding that violated the monetary conditions of his probation. he willfully We disagree. Because probation is an act of grace by the State to one convicted of a crime[,] . . . an alleged violation of a probationary condition need not be proven beyond a reasonable doubt. 414 State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, (1999) (citation and internal quotation marks omitted). All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation. 496 S.E.2d 842, 846 State v. White, 129 N.C. App. 52, 58, (1998), improvidently allowed in part, (1999). aff d in part, 350 N.C. 302, disc. review 512 S.E.2d 424 Any violation of a valid condition of probation is -4sufficient to revoke [a] defendant s probation. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The trial judge has a duty, when the defendant does offer evidence of his ability or inability to make the money payments required [as a condition of probation], to make findings of fact which clearly show that he did consider and did evaluate the defendant s evidence. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983) (citation omitted). The trial judge, as the finder of the facts, is not required to accept defendant s evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). In this case, defendant admitted that he had failed to satisfy the monetary conditions of his probation, and offered no excuse as to why he was unable to make the required payments. To the extent that defendant s offer to have a relative make a payment constituted an excuse, the trial court made findings demonstrating that it considered defendant s evidence, and that defendant has failed to demonstrate an abuse of discretion. Accordingly, we conclude that defendant s argument lacks merit. In defendant s remaining argument, he contends that the trial court s written judgment does not match its oral findings -5regarding the probation violations. We agree, and conclude that this discrepancy constitutes a clerical error. Clerical error has been defined . . . [a]s: an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, reasoning or determination . 198, 202, 535 S.E.2d 875, and not from judicial State v. Jarman, 140 N.C. App. 878 (2000) Dictionary 563 (7th ed. 1999)). (quoting Black s Law When, on appeal, a clerical error is discovered in the trial court s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth. State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted). At the probation revocation hearing, the trial court found defendant violations. had committed two of the six alleged probation In its written judgment, however, it found all six of the alleged violations. From the record, it appears that this variance was a mistake in recording the trial court s oral findings, rather determination. than the result of a second judicial Furthermore, given the fact that any one of the six alleged violations provided sufficient cause for the trial court to revoke defendant s probation, defendant cannot -6demonstrate any prejudice from the apparent clerical error. Accordingly, we remand the matter to the superior court for correction of the clerical error, so that the judgment accurately reflect the trial court s findings. Affirmed; remanded for correction of a clerical error. Judges McGEE and McCULLOUGH concur. Report per Rule 30(e). may
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