State v. Mills, 86 N.C. App. 479 (1987)

July 21, 1987 · North Carolina Court of Appeals · No. 8629SC1280

86 N.C. App. 479

STATE OF NORTH CAROLINA v. BRICE MILLS, JR., aka BRICE JUNIOR MILLS

No. 8629SC1280

(Filed 21 July 1987)

Criminal Law § 143.12— revocation of probation — original sentence activated —no error

Where defendant violated a condition of his probation and a superior court judge continued defendant on probation and did not activate any of the prison sentences earlier imposed by another superior court judge, the second judge’s order undertaking to consolidate and reduce defendant’s sentences was unauthorized and without effect so that a third superior court judge, who found that defendant had violated the terms of his probation, had authority to revoke the probation and activate the original sentences without reducing them. N.C.G.S. § 15A-1344(d).

APPEAL by defendant from Snepp, Judge. Judgments entered 24 July 1986 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 1 June 1987.

Defendant appeals from the revocation of his parole and the activation of his original sentences. The events pertinent hereto follow: On 2 May 1983, after pleading guilty to one count of felonious forgery, one count of felonious uttering, four counts of feloniously obtaining property by false pretense, and one count of misdemeanor bad checks, defendant was sentenced by Judge Burroughs to three consecutive two year sentences and one two year sentence that was not designated as either consecutive or concurrent; but the prison sentences were suspended for five years and defendant was placed on probation for five years with the condition that he report to his probation officer within 72 hours of his release. Instead of complying with the order defendant first reported to his probation officer 22 days after his release and then only after the probation officer had conducted a search for him. On 4 March 1985 a hearing was eventually held on the probation violation report, after which Judge Gudger found that defendant had wilfully and without lawful cause violated the terms and conditions of his probation, entered an order that continued defendant on probation, but modified the conditions of probation by consolidating the sentences for judgment and reducing both the sentence terms and the period of probation to three years. On 25 June 1985 defendant was again charged with violating his conditions of probation. Following a hearing thereon and a finding that defendant had wilfully violated his probation Judge Snepp entered an order revoking his probation and activating the sentences originally imposed by Judge Burroughs.

Attorney General Thornburg, by Associate Attorney General Donald W. Latón, for the State.

Jarald N. Willis for defendant appellant.

PHILLIPS, Judge.

Defendant’s only assignment of error concerns the activation of his original sentences. He argues that only the sentences as modified by Judge Gudger could be activated. The invocation was authorized by law and we overrule the assignment. The applicable statute is G.S. 15A-1344(d), which provides:

... If a convicted defendant violates a condition of probation at any time prior to the expiration or termination of the period of probation, the court . . . may continue him on probation, with or without modifying the conditions ... or, if continuation, modification, or special probation is not appropriate, may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing . . . The court, before activating a sentence to imprisonment established when the defendant was placed on probation, may reduce the sentence.

This statute, as we read it, authorizes the court to reduce a prison sentence previously imposed only when the prison sentence is activated and the probation is revoked. Since Judge Gudger continued defendant on probation and did not activate any of the prison sentences earlier imposed by Judge Burroughs, his order undertaking to consolidate and reduce defendant’s sentences was unauthorized and without effect. Thus, upon it being shown that defendant had violated U j terms of his probation, Judge Snepp had the authority under this statute to revoke the probation and activate the original sentences without reducing them. Contrary to defendant’s argument, Judge Snepp did not improperly overrule another Superior Court judge; he merely exercised the authority that the statute gave him.

Affirmed.

Chief Judge Hedrick and Judge ORR concur.