State v. Simpson , 25 N.C. App. 176 ( 1975 )

212 S.E.2d 566 (1975) 25 N.C. App. 176

STATE of North Carolina
v.
Luther W. SIMPSON.

No. 747SC1056.

Court of Appeals of North Carolina.

March 19, 1975. Certiorari Denied May 6, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.

Robert A. Farris, Wilson, for defendant appellant.

Certiorari Denied by Supreme Court May 6, 1975.

HEDRICK, Judge.

Defendant's first three assignments of error relate to the admission and exclusion of certain testimony at the hearing on the State's motion to activate the prison sentence.

At a hearing to revoke the suspension of a prison sentence for the alleged violation of a valid condition of suspension, the court is not bound by strict rules of evidence. All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion 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). Suffice it to say, therefore, we have carefully examined each exception upon which these assignments of error are based and conclude that the defendant has failed to show any prejudicial error. While some of the testimony challenged by these exceptions, in the strictest sense, may be considered hearsay, there is plenary competent evidence in the record to support all of the material findings of the trial court.

Next, defendant contends the suspended sentence was invalid because it was not suspended for a definite period of time. G.S. § 15-200 in pertinent part provides:

"The period of probation or suspension of sentence shall not exceed a period of five years and shall be determined by the judge of the court and may be continued or extended, terminated or suspended by the court at any time, within the above limit." (Emphasis ours.)

Ordinarily, the suspension of a prison sentence upon conditions is valid for the period of time the court is empowered to suspend or stay the execution of the sentence. State v. McBride, 240 N.C. 619, 83 S.E.2d 488 (1954). Thus, where the judgment does not specify the period of time that execution of the sentence is suspended upon conditions, we are of the opinion and so hold that execution of the sentence is suspended or stayed for the period of time that the court is empowered by G.S. § 15-200 to suspend the sentence.

Defendant contends the court erred in revoking the suspension of the sentence for that the condition allegedly breached by the defendant was in violation of his constitutional right to work.

A defendant who expressly or impliedly consents to the suspension upon specified conditions of an otherwise valid sentence to imprisonment may not thereafter attack the validity of an order putting such sentence into effect, entered after due notice and hearing, except (1) on the ground that there is no evidence to support a finding of a breach of the conditions of suspension, or (2) on the ground that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. Defendant's consent to the suspension of a prison sentence does not preclude him from contesting the reasonableness of the condition which he has broken when such breach is made the ground for putting the prison sentence into effect. A condition which is a violation of the defendant's constitutional right and, therefore, beyond the power of the court to impose is per se unreasonable. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970).

The primary purpose of a suspended sentence is to further the reform of the defendant. State v. Smith, 233 N.C. 68, 62 S.E.2d 495 (1950). A defendant must not be oppressed or unduly burdened by the suspension. State v. Everitt, 164 N.C. 399, 79 S.E. 274 (1913).

In the instant case, defendant had been convicted of a violation of G.S. § 14-100 on evidence showing that he obtained money from a homeowner under the false pretense that he was a painting contractor authorized by an insurance company to paint the exterior of the house. It is obvious from the condition upon which defendant's prison sentence was suspended and the nature of the crime involved that the trial judge considered as an important aspect of the defendant's rehabilitation that the defendant not find himself in a position wherein he would more than likely repeat this same offense. Without totally preventing the defendant from engaging in the building or repair trade, the trial judge merely limited the defendant's participation in the trade to "employment with others". This condition was clearly directly related to and grew out of the offense for which the defendant was convicted, see State v. Smith, supra, and was consistent with proper punishment for the crime, see State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922 (1953). We hold that under the circumstances of this case this condition neither violated the defendant's constitutional rights nor was otherwise unreasonable.

Defendant contends that the evidence adduced at the hearing does not support a finding that he violated the condition of his probation that he not engage in the trade of Building or Repair Contractor and limit himself to employment with others. "Ordinarily, in hearings of this character, the findings of fact and the judgment entered thereupon are matters to be determined in the sound discretion of the court, and the exercise of that discretion in the absence of gross abuse cannot be reviewed here." State v. Davis, 243 N.C. 754, 756, 92 S.E.2d 177, 178 (1956) (citations omitted). We have carefully reviewed the evidence introduced at the hearing and find no abuse of discretion. The court's findings of fact are amply supported in the record and such findings support the order activating defendant's prison sentence.

When this appeal was heard in this court, defendant's counsel argued that the original bill of indictment was fatally defective because the alleged false pretense was a promise to repay $420.00 in the future. A motion in arrest of judgment is one made after verdict and to prevent entry of judgment and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). Judgment may be arrested in a criminal case when a fatal defect appears on the face of the record proper. When a motion in arrest of judgment is based on a fatal defect appearing on the face of the record proper, it may be made at any time, even in the appellate court; and, in the absence of such a motion, the appellate court ex mero motu will examine the record proper for such defect. Therefore, in the light of defendant's argument, we have examined the bill of indictment and have determined that it is sufficient to support the judgment. While a promise to do something in the future, i. e., repay money, cannot be a false pretense sufficient to support a charge under G.S. § 14-100 because the false pretense must be of a past or existing fact, State v. Hargett, 259 N.C. 496, 130 S.E.2d 865 (1963); State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954), the bill here clearly charges that the defendant falsely represented himself to be working for an insurance company which had authorized him to make an advertising offer.

The order appealed from is

Affirmed.

PARKER and CLARK, JJ., concur.