Opinion
No. 08-45.
Filed 15 July 2008.
Guilford County Nos. 03 CRS 45479, 93523.
Appeal by defendant from judgment entered 2 October 2007 by Judge Steve A. Balog in Guilford County Superior Court. Heard in the Court of Appeals 30 June 2008.
Attorney General Roy Cooper, Assistant Attorney General Bethany A. Burgon, for the State. Carol Ann Bauer for defendant-appellant.
Defendant Clarence Clifton Robinson appeals from a 2 October 2007 judgment revoking his probation and activating a suspended sentence of imprisonment.
On 17 May 2004, defendant pled guilty to a charge of possession of a firearm by a felon and carrying a concealed weapon. Defendant received a fifteen-month minimum to eighteen-month maximum suspended sentence and was placed on supervised probation for thity-six months. On 3 August 2005, defendant's probation was modified to permit defendant to complete 50 hours of community service until 10 December 2005. On 21 February 2007, defendant's probation officer filed a probation violation report and an addendum to the violation report alleging that defendant had violated certain monetary conditions, failed to remain employed, failed to report to his probation officer on two occasions, and failed to notify his probation officer of a change in address. The violation report requested a hearing on the violations for 26 February 2007. A warrant for defendant's arrest was also issued on 21 February 2007, but defendant was not served with the warrant or taken into custody until 7 September 2007.
On 2 October 2007, the trial court conducted a probation revocation hearing. At the beginning of the hearing, defendant's counsel admitted that he had willfully violated each of the alleged violations. After hearing from the parties, the trial court revoked defendant's probation and activated his suspended sentence. Defendant now appeals.
In his sole assignment of error on appeal, defendant contends that the trial court abused its discretion in revoking his probation. To revoke a defendant's probation, the trial court need only find that the defendant has "willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). The breach of any one condition of probation is sufficient grounds to revoke a defendant's probation. See State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983). A trial court's judgment revoking a defendant's probation will only be disturbed upon a showing of a manifest abuse of discretion. See State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
Here, defendant argues that the trial court abused its discretion in revoking his probation because he provides for three children, including a newborn, and serving a prison term is not in the best interest of the children. Defendant also argues that the trial court failed to consider that his probation period expired more than five months before the revocation hearing.
As an initial matter, we note that while the violation report was filed within the 36-month probation period, the revocation hearing occurred well after the expiration of the probation period. A trial court has jurisdiction to revoke a defendant's probation after the probationary period has expired only if:
(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and
(2)The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier.
N.C. Gen. Stat. § 15A-1344(f) (2007). Our Supreme Court has held that if the trial court fails to make the "reasonable effort" finding required by § 15A-1344(f)(2), "the trial court's jurisdiction to revoke probation after expiration of the probationary period is not preserved." State v. Bryant, 361 N.C. 100, 103, 637 S.E.2d 532, 534 (2006). Here, the trial court marked a finding on the pre-printed probation revocation judgment form which would satisfy the requirement of N.C. Gen. Stat. § 15A-1344(f)(2). However, the record and the transcript of the revocation hearing are completely devoid of any evidence to support the trial court's finding that the State made any reasonable efforts to conduct the revocation hearing prior to the expiration of the probation period. Nevertheless, because defendant has failed to assign error to this finding of fact, it is binding on appeal. See State v. Pendleton, 339 N.C. 379, 389, 451 S.E.2d 274, 280 (1994) (holding that appellate courts are bound by uncontested findings of superior court), cert. denied, 515 U.S. 1121, 132 L. Ed. 2d 280 (1995); see also State v. High, 183 N.C. App. 443, 446, 645 S.E.2d 394, 396 (2007) (holding that the trial court's finding that defendant had absconded, thereby delaying the revocation hearing, was binding on the defendant where defendant did not bring forth this assignment of error in his appellate brief).
We next turn to defendant's assertion that the trial court failed to properly consider the fact that he was caring for three children. We do not find that defendant's vague assertion that he had three children in his care is sufficient to undermine the trial court's decision to revoke defendant's probation. Here, defendant admitted to multiple violations of his probation including the failure to maintain employment, admittedly important to supporting dependent children. Moreover, it is well established that a single violation of the conditions of the probation will support revocation. See Seay, 59 N.C. App. at 670-71, 298 S.E.2d at 55 ("It is sufficient grounds to revoke the probation if only one condition is broken."). Consequently, we conclude that the trial court did not abuse its discretion in revoking defendant's probation.
Affirmed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).