State v. Webb , 31 N.C. App. 691 ( 1976 )

HEDRICK, Judge.

Defendant first contends the North Carolina procedure for the revocation of probation as applied to the defendant in this case does not comply with the due process requirements mandated by Morrisey v. Brewer, 408 U.S. 471, 33 L.Ed. 2d 484, 92 S.Ct. 2593 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 36 L.Ed. 2d 656, 93 S.Ct. 1756 (1973). For a succinct analysis of the cited cases see the decision of this Court in State v. O’Connor, 31 N.C. App. 518, 229 S.E. 2d 705 (1976). In O’Connor Chief Judge Brock wrote:

“Both cases, in mandating the preliminary hearing stage, were concerned with the possible unjustified incarceration of a parolee or probationer for a substantial period of time before a fact-finding hearing could be held.

The possible unjustified deprivation of the conditional liberty of a parolee or probationer is not involved in this case. The defendant was served with a bill of particulars, arrested, and released on bond, all in the same day. He was free until the time of the fact-finding hearing from which stemmed the revocation of his probation.

Defendant received every benefit he could have received from a preliminary hearing. Under such circumstances due process did not require that defendant be accorded a preliminary hearing.” Id. at 519-20, 229 S.E. 2d at 707.

In this case, while defendant was on probation, she was arrested and charged with possession of controlled substances in Guilford County. When the latter case came up for trial in Guilford County Superior Court, the State decided not to prosecute the defendant, but instead filed a motion to have her probation revoked, and defendant was released upon her own recognizance to appear in the Wake County Superior Court for a hearing in the present case on the State’s motion to have her probation revoked. Thus it is clear that the defendant was not deprived of her conditional liberty pending the revocation-of-probation hearing. This assignment of error is without merit.

Next defendant contends the court erred to her prejudice by misinterpreting G.S. 15-200 and 15-200.1, “by assuming they give the court no authority to continue appellant’s probation where the court finds a violation of the terms of probation.” Before revoking defendant’s probation and activating her prison sentence, Judge Godwin made a statement to counsel regarding his authority to revoke defendant’s probation upon a finding that the terms and conditions of her probation had been violated. This statement, which is reproduced in the record, is the basis of this assignment of error. The statement lends itself to a variety of interpretations. Assuming arguendo that the court was in error in its interpretation of its authority under G.S. 15-200 and 15-200.1, defendant has failed to show that she was prejudiced in any way by the court’s interpretation of the statutes. The record makes it quite clear that defendant had violated one of the conditions of her probation, and the judge in his statement made it equally clear that he intended to revoke her probation upon the finding of the violation. This assignment of error is without merit.

Finally, citing Hall v. Bostic, 391 F. Supp. 1297 (W.D.N.C.1974), defendant contends the court erred in failing to credit her with time served on probation when it activated her suspended sentence. The case relied upon by defendant was reversed by the Fourth Circuit Court of Appeals in Hall v. Bostic, 529 F. 2d 990 (4th Cir. 1975). In reversing the case relied upon by defendant the Court said, “There is nothing unusual in the denial by North Carolina law of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. The validity of such denial has been universally recognized both in federal and state decisions.” Id. at 991. This assignment of error is not sustained.

The order appealed from is

Affirmed.

Judges Morris and Arnold concur.