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14 N.C. App. 236

188 S.E.2d 30

State v. Huntley

Court of Appeals of North Carolina

Decided April 26, 1972

Court of Appeals of North Carolina · decided 1972-04-26

Key passage — most relied on by later courts

“If, upon a proceeding to revoke probation or a suspended sentence, a defendant wishes to rely upon his inability to make payments as required by its terms, he should offer evidence of his inability for consideration by the judge. Otherwise, evidence establishing that defendant has failed to make payments as required by the judgment may justify a finding by the judge that defendant’s failure to comply was willful or was without lawful excuse. We disapprove the principle announced in Foust, supra, and followed in Huntley and Neal, supra. In the case presently under review, the defendant offered evidence which tended to show that he was unavoidably without the means to make payments as required by his probationary judgment. The trial judge, as the finder of the facts, is not required to accept defendant’s evidence as true. However, in this case, it is not clear whether the trial judge proceeded under an erroneous assumption that the fact of failure to comply required revocation of probation, or whether he considered defendant’s evidence and found that defendant had offered no evidence worthy of belief to justify a finding of a legal excuse for failure to comply with the judgment. Obviously, defendant is entitled to have his evidence considered and evaluated. Because it appears that this was not done, the order revoking probation is vacated and the cause is remanded for a new hearing upon the Report of the Probation Officer and the Bill of Particulars.”

quoted by 1 later decision, including 43 N.C. App. 727 - State v. Smith

Relies on 71 Cal. 2d 388 - In Re Allen · State v. Robinson · State v. Caudle

Good law ✅— No negative treatment on recordhow we know

Decided 1972-04-26

How this case has been cited

Cited by 8 later decisions — most recently March 1998

8 state decisions

40197219801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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HEDRICK, Judge.

¶1 In his brief defendant’s counsel asserts: “The court may not lawfully require an indigent defendant to reimburse the State for counsel fees paid on his behalf.” Citing In Re Allen, 78 Cal. Rptr. 207, 455 P. 2d 143 (1969), the defendant contends that a probation condition requiring him to reimburse the State for the cost of his court-appointed counsel is an infringement on his constitutional right to counsel. In a similar case, State v. Foust, 13 N.C. App. 382, 185 S.E. 2d 718 (1972), this Court rejected the same contention and held as a condition of probation an indigent defendant could be required to reimburse the State for fees paid his court-appointed counsel.

¶2 Although we find the conditions defendant is charged with having violated to be valid, the proceeding must be remanded for the court did not make findings of fact sufficient to support its conclusion that the defendant’s failure to make the *238 payments set out in the probation judgment was willful or without lawful excuse. The court merely concluded that the defendant had willfully violated his probation condition by not making the payments and that he was in arrears $125. In State v. Foust, supra, the Court said: “* * * Has he had the financial ability to comply with the judgment at any time since he became obligated to pay? If not, has his continued inability to pay resulted from a lack of reasonable effort on his part or from conditions over which he had no control? These are essential questions which must be answered by appropriate findings of fact before the court can determine whether defendant’s failure to comply was willful or without lawful excuse.”

¶3 The judgment activating the 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).

¶4 Vacated and remanded.

Judges Brock and Vaughn concur.
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