STATE v. BAINES

No. 787SC1069.

253 S.E.2d 300 (1979)

40 N.C. App. 545

STATE of North Carolina v. Dale BAINES.

Court of Appeals of North Carolina.

April 3, 1979.


Attorney(s) appearing for the Case

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Benjamin G. Alford, Raleigh, for the State.

Early & Cahandler by John S. Williford, Jr., Rocky Mount, for defendant-appellant.


MITCHELL, Judge.

The defendant assigns as error the admission into evidence of several portions of the testimony of his probation officers. He contends in this regard that the trial court committed reversible error by admitting testimony of the probation officers relating to his ability to work during the period of his probation and the availability of work in the area during that period. He also contends that the trial court committed reversible error by admitting the conclusory testimony of one officer with regard to the wilfulness of his failure to abide by the terms of his probation. We do not agree.

The trial court was not bound by strict rules of evidence during the probation revocation hearing. State v. Pratt, 21 N.C. App. 538, 204 S.E.2d 906 (1974). Assuming arguendo that the trial court erred in admitting the testimony which gave rise to these contentions by the defendant, however, no reversible error was committed. When the trial court hears a matter without a jury and allows both competent and incompetent evidence to be admitted, it is presumed that the trial court ignores the incompetent evidence and considers only that which is competent and that the findings of fact of the court are in no way influenced by hearing the incompetent evidence. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668, cert. denied, 358 U.S. 888, 79 S.Ct. 129, 3 L.Ed.2d 115 (1958); Bailey v. Matthews, 36 N.C. App. 316, 244 S.E.2d 191 (1978). Therefore, the order and judgment of the trial court must be affirmed if competent evidence was before the trial court which was reasonably sufficient to satisfy it in the exercise of sound judicial discretion that the defendant had, without lawful excuse, wilfully violated one of the valid conditions of his probation. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967); State v. Morton, 252 N.C. 482, 114 S.E.2d 115 (1960); State v. Pratt, 21 N.C. App. 538, 204 S.E.2d 906 (1974).

We find that the competent direct evidence introduced by the State through the testimony of the probation officers in the present case indicated, when taken in the light most favorable to the State, that the defendant absented himself from the State without permission or authority in violation of the terms and conditions of his probation and never attempted to contact his probation officers after his return to North Carolina. The competent direct evidence introduced by the State also indicated that the defendant did not visit or remain in contact with his probation officers before leaving the State or after his return, even though one of the officers specifically asked the defendant to come to his office after a chance meeting with the defendant in a public place. This competent and direct evidence introduced by the State was clearly sufficient to support, if nothing more, the trial court's findings and conclusions that the defendant wilfully and without lawful excuse refused to report to his probation officers during those periods of time during which he was present in the State of North Carolina and that he wilfully and without lawful excuse absented himself from this State on occasion, both being done by him in violation of the terms and conditions of his probation. As the State's evidence is only required to be reasonably sufficient to satisfy the trial court in the exercise of sound judicial discretion that the defendant, without lawful excuse, wilfully violated one valid condition of probation, these portions of the State's evidence were sufficient to support the order and judgment of the trial court from which the defendant has appealed. Therefore, even if it is assumed arguendo that the testimony of the probation officers giving rise to the defendant's contentions was incompetent and inadmissible, the competent and admissible evidence elicited from them before the trial court was sufficient to support the findings previously referred to and the conclusion that the defendant's probation should be revoked. These assignments and contentions are overruled.

Additionally, the defendant's testimony was sufficient to support all of the findings and conclusions of the trial court. The defendant took the stand and admitted that he was able to work and in fact did work during the period of his probation but had not paid the amounts still owed as a condition of that probation. He further admitted that he did not go to his probation officer's office when specifically requested to go there by the officer. His excuse for this was that it had slipped his mind. He also admitted that he left the State during his probationary period without notifying his probation officer. His excuse for this was that he had received threats against his life. He admitted, however, that he had never informed his probation officer about these threats or attempted to contact his probation officer even after returning to North Carolina. The testimony by the defendant was more than adequate to support the findings and conclusions of the trial court to the effect that the defendant wilfully and without lawful excuse failed to pay court costs and other amounts owed as required by the probation judgment, that he wilfully and without lawful excuse failed to meet with his probation officer and that he wilfully and without lawful excuse departed the State without notifying his probation officer.

The defendant additionally contends that the order for arrest served upon him in connection with the violation of his probation was not sufficient in that it did not set forth all of the essential elements which the State was required to prove in order to justify revocation of his probation. The arrest order in question instead contained the conclusory direction to law enforcement officers that: "The defendant named above having failed to comply with the terms and conditions of the probation judgment in an actions (sic) charging breaking and entering and larceny YOU ARE DIRECTED TO ARREST THE DEFENDANT. . . . " The defendant contends that this order for his arrest for violation of his probation was insufficient to inform him with particularity of the accusations against him so as to enable him to prepare his defense, inadequate to protect him from subsequent prosecution for the same offenses, and inadequate to enable the trial court to proceed to judgment in the event of his conviction. We find the defendant's contentions without merit.

As probation or suspension of sentence is an act of grace extended to one already convicted of a crime in a trial providing the full protection of due process of law, the rights of an offender in a probation revocation hearing are not those extended by the Constitution of the United States to one on trial in a criminal prosecution. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967). The charge involved in all such cases is simply that the defendant has wilfully failed, without lawful excuse, to abide by the conditions of probation or suspended sentence. There are no lesser included offenses. If the defendant wishes more specific information concerning the evidence to be introduced by the State at the probation revocation hearing, ample means for obtaining such information are available. A defendant on probation or under suspended sentence must be given notice in writing of the hearing in apt time and an opportunity to be heard before any sentence of imprisonment is put into effect. State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967). He is not, however, entitled to the same notice which must be included in a bill of indictment in a criminal case or to many of the other rights of one on trial in a criminal prosecution. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967). We find the order for arrest served upon the defendant constituted sufficient notice in writing of his probation revocation hearing in apt time to afford him a reasonable opportunity to be heard.

The order and judgment of the trial court are

Affirmed.

ROBERT M. MARTIN and WEBB, JJ., concur.


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