No. 8412SC1006.

328 S.E.2d 833 (1985)

STATE of North Carolina v. Curtis S. CROUCH.

Court of Appeals of North Carolina.

May 7, 1985.

Attorney(s) appearing for the Case

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

K. Douglas Barfield, Fayetteville, for defendant.

WELLS, Judge.

By his single assignment of error, defendant contends that the trial court erred by revoking his probation. He argues that the court failed to make proper findings of facts to support its finding and conclusion that defendant's failure to comply with the terms of probation was willful or without lawful excuse. We do not agree.

Essentially, defendant's argument is to the effect that his evidence tended to establish defendant's inability to comply with the terms of his probation, and that the trial court's judgment fails to make the finding necessary to resolve the issue raised by that evidence.

In State v. Young, 21 N.C. App. 316, 204 S.E.2d 185 (1974), this court held that where a defendant has presented competent evidence of his inability to comply with the terms of his probation, he is entitled to have that evidence considered and evaluated before the trial court can properly order revocation. Accord State v. Sellars, 61 N.C. App. 558, 301 S.E.2d 105 (1983); State v. Smith, 43 N.C. App. 727, 259 S.E.2d 805 (1979). See also N.C.Gen.Stat. § 15A-1345 (1983). In Young, this court also made it clear that the burden is on the defendant to present competent evidence of his inability to comply; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was willful or without lawful excuse. It is this requirement that defendant failed to meet in this case.

Defendant presented no evidence. His position with respect to his inability to comply was related through the statements of his counsel. We hold that counsel's statements were not competent evidence, and that the trial court was not, therefore, under a duty to make specific findings with respect to defendant's alleged inability to comply. In reaching this position, we are aware that G.S. § 15A-1345(c) provides that formal rules of evidence do not apply at revocation hearings. See also N.C.Gen. Stat. § 8C-1, Rule of Evidence 1101 (Cum. Supp.1983). Our review of representative cases discloses no circumstances where statements of counsel have been treated as evidence, while the cases repeatedly state that the findings and conclusions of the trial court in such hearings must be based on competent evidence.

Defendant having stipulated that the allegation as to his probation violations were true, and having presented no evidence as to his inability to comply with the terms of his probation, the judgment of the trial court must be and is


HEDRICK, C.J., and MARTIN, J., concur.


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