Opinion
No. 7227SC236
Filed 26 April 1972
Criminal Law 145.1 — revocation of probation — insufficiency of findings Revocation of defendant's probation is vacated and the proceeding is remanded for failure of the trial court to make sufficient findings of fact as to whether defendant's failure to make support payments required by the probation judgment was willful or without lawful excuse.
APPEAL by defendant from Thornburg, Judge, 25 October 1971 Regular Criminal Session of Superior Court held in GASTON County.
Attorney General Robert Morgan and Associate Attorney Edwin M. Speas, Jr., for the State.
Basil L. Whitener and Anne M. Lamm for defendant appellant.
Judge BROCK concurs in the result.
This appeal is from an order revoking defendant's probation and activating his suspended sentence. In January 1971, defendant entered a plea of guilty to the crime of nonsupport. The judgment imposing a prison sentence of six months was suspended, and the defendant was placed on probation for a period of five years, subject to the rules and regulations of the Probation Commission and the conditions of probation as set out in the probation judgment. One of the conditions of probation was as follows:
"That the defendant pay into the office of the Clerk of Court the sum of $80.00 every other Friday, first payment to be made on or before Friday, February 12, 1971 and a like payment every other Friday thereafter until further ordered by the court."
On 27 October 1971, after a hearing, Judge Thornburg made findings and concluded that the defendant had willfully and without lawful excuse violated the terms of a valid condition of probation in "[t]hat as of September 28, 1971 the said probationer is $320.00 in the arrears in his support payments, having made his last payment of $40.00 on September 13, 1971, and having paid a total of $1,000.00 to this date . . . that furthermore he did fail to pay into the office of the Clerk of Gaston County Superior Court every other Friday the sum of $80.00 from July 29, 1971 until September 28, 1971."
From an order revoking defendant's probation and activating the suspended sentence, the defendant appealed.
In this case, as in State v. Foust, 13 N.C. App. 382, 185 S.E.2d 718 (1972), and State v. Huntley, 14 N.C. App. 236, 188 S.E.2d 30 (1972) (filed at the same time as this opinion) the trial court's findings of fact are not sufficient to support his conclusion that the defendant's failure to make the payments set out in the probation judgment was willful or without lawful excuse.
The judgment activating the suspended sentence is vacated and the proceeding is remanded for further hearing in order that the judge may determine, by appropriate findings of fact, whether the failure of defendant to make the required payments was willful or without lawful excuse. The judge's findings of fact should be definite and not mere conclusions. State v. Foust, supra; State v. Caudle, 7 N.C. App. 276, 172 S.E.2d 231 (rev'd on other grounds, 276 N.C. 550, 173 S.E.2d 778); State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958).
Vacated and remanded.
Judge VAUGHN concurs.
Judge BROCK concurs in the result.