Opinion
No. 05-910.
Filed March 7, 2006.
Catawba County Nos. 05 CRS 1452-53.
Appeal by defendant from judgments entered 5 May 2005 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 16 January 2006.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. Haakon Thorsen for defendant-appellant.
On 3 November 2003 defendant pled guilty to four counts of obtaining property by false pretenses. Defendant was sentenced to two consecutive terms of six to eight months imprisonment. Defendant's sentences were suspended and she was placed on supervised probation for thirty months. Defendant was given two days credit for time spent in confinement prior to the date of judgment.
On 2 February 2004 probation violation reports were filed alleging that defendant had failed to comply with the terms of her probation. On 24 May 2004 defendant's probation was modified and she was ordered to spend thirty days in jail as a special condition of probation.
On 13 January 2005 additional probation violation reports were filed alleging that defendant had failed to comply with the terms of her probation. Defendant was arrested and held in custody until her hearing. On 2 May 2005 a probation violation hearing was held in Catawba County Superior Court. The trial court found that defendant had willfully violated the terms of her probation without lawful excuse, revoked her probation, and activated her suspended sentences. Defendant was given twenty-five days credit for time spent in confinement prior to the date of judgment. Defendant appeals.
Defendant argues that the trial court failed to give her credit for an additional thirty days spent in custody as a term of special probation. Defendant contends that she is entitled to the credit pursuant to N.C. Gen. Stat. §§ 15-196.1 and State v. Farris, 111 N.C. App. 254, 431 S.E.2d 803 (1993), aff'd 336 N.C. 552, 444 S.E.2d 182 (1994). We agree.
This Court has stated that "a defendant who has served, pursuant to special probation, an active sentence, is entitled to credit for that time on any sentence imposed upon revocation of probation." Id. at 256, 431 S.E.2d at 805. According to the record, on 24 May 2004 the trial court modified the original judgment by placing defendant on special probation pursuant to N.C. Gen. Stat. §§ 15A-1351, and committing her to the custody of the sheriff for a period of thirty days. The order retained the earlier conditions of defendant's probation. Upon revocation of defendant's probation, the trial court failed to give defendant credit for this time spent in confinement. Accordingly, we remand the matter for amendment of the judgment granting the defendant an additional thirty days of credit.
Because resolution of defendant's first argument is dispositive of the appeal, we need not consider defendant's remaining arguments.
Remanded.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).