State v. Cooper

Court of Appeals of North Carolina

State v. Cooper

275 S.E.2d 538, 51 N.C. App. 233, 1981 N.C. App. LEXIS 2216

CourtCourt of Appeals of North Carolina

DecidedMarch 17, 1981

DocketNo. 804SC832

StatusPublished

Cited by1 cases

This text of 275 S.E.2d 538 (State v. Cooper) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Cooper, 275 S.E.2d 538, 51 N.C. App. 233, 1981 N.C. App. LEXIS 2216 (N.C. Ct. App. 1981).

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Opinions

BECTON, Judge.

Defendant makes two related assignments of error which will be considered together. The thrust of his argument is that Condition (N) of his Probation Judgment — that he not operate a motor vehicle between 12:01 a.m. and 5:30 a.m. — was not reasonably related to the offense committed nor was it imposed for a reasonable period of time. Defendant argues, therefore, that the Court’s order revoking probation and activating his suspended sentence was erroneously entered because it was based on an alleged violation of an invalid condition of probation. We agree.

Conditions of probation must bear some reasonable relationship to the offense committed by the defendant, State v. Smith, 233 N.C. 68, 62 S.E. 2d 495 (1950), and must be reasonably related to his rehabilitation, G.S. 15A-1343(b)(17). The failure of the defendant to obj ect at the time the condition was imposed in no way constitutes a waiver of his right to object to the condition at a later time. G.S. 15A-1342(g).

The State cites State v. Smith, supra, to support its position that the driving prohibition herein was reasonably related to the offense charged and to defendant’s rehabilitation. In Smith, however, the defendant was convicted of larceny upon evidence that he used a motor vehicle to steal 900 pounds of cotton. The court pointed out, “[i]f, in committing the larceny the defendant used an automobile, the crime and the operation are directly related.” Id. at 70, 62 S.E. 2d at 496.

In the case sub judice, the defendant pleaded guilty to possession of stolen credit cards. No evidence appears in the record that defendant used an automobile to facilitate a theft or [235]*235the possession of the cards. It is clear that use of a car is not necessary to steal or possess credit cards, and it is equally clear that prohibiting the use of a car adds little or nothing to this defendant’s rehabilitation for committing that particular crime. Additionally, the time of driving prohibition —12:01 a.m. until 5:30 a.m. — is a time period during which the defendant is least likely to use stolen credit cards.

Based on the evidence in the record then, we find that the condition of probation allegedly breached by the defendant is not one reasonably related to the offense committed. As such, revocation of the defendant’s probation was improper. Although finding this condition unreasonably related to the particular offense in this case, we in no way wish to discourage the courts from placing individuals on probation subject to the imposition of reasonable conditions for continued release. Additionally, we do not reach the question of the reasonableness of the length of time of the probation conditions. For the reasons stated herein, we hold that the revocation of defendant’s probation was improper.

Reversed.

Chief Judge Morris concurs. Judge Vaughn dissents.

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BECTON, Judge.

Defendant makes two related assignments of error which will be considered together. The thrust of his argument is that Condition (N) of his Probation Judgment — that he not operate a motor vehicle between 12:01 a.m. and 5:30 a.m. — was not reasonably related to the offense committed nor was it imposed for a reasonable period of time. Defendant argues, therefore, that the Court’s order revoking probation and activating his suspended sentence was erroneously entered because it was based on an alleged violation of an invalid condition of probation. We agree.

Conditions of probation must bear some reasonable relationship to the offense committed by the defendant, State v. Smith, 233 N.C. 68, 62 S.E. 2d 495 (1950), and must be reasonably related to his rehabilitation, G.S. 15A-1343(b)(17). The failure of the defendant to obj ect at the time the condition was imposed in no way constitutes a waiver of his right to object to the condition at a later time. G.S. 15A-1342(g).

The State cites State v. Smith, supra, to support its position that the driving prohibition herein was reasonably related to the offense charged and to defendant’s rehabilitation. In Smith, however, the defendant was convicted of larceny upon evidence that he used a motor vehicle to steal 900 pounds of cotton. The court pointed out, “[i]f, in committing the larceny the defendant used an automobile, the crime and the operation are directly related.” Id. at 70, 62 S.E. 2d at 496.

In the case sub judice, the defendant pleaded guilty to possession of stolen credit cards. No evidence appears in the record that defendant used an automobile to facilitate a theft or [235]*235the possession of the cards. It is clear that use of a car is not necessary to steal or possess credit cards, and it is equally clear that prohibiting the use of a car adds little or nothing to this defendant’s rehabilitation for committing that particular crime. Additionally, the time of driving prohibition —12:01 a.m. until 5:30 a.m. — is a time period during which the defendant is least likely to use stolen credit cards.

Based on the evidence in the record then, we find that the condition of probation allegedly breached by the defendant is not one reasonably related to the offense committed. As such, revocation of the defendant’s probation was improper. Although finding this condition unreasonably related to the particular offense in this case, we in no way wish to discourage the courts from placing individuals on probation subject to the imposition of reasonable conditions for continued release. Additionally, we do not reach the question of the reasonableness of the length of time of the probation conditions. For the reasons stated herein, we hold that the revocation of defendant’s probation was improper.

Reversed.

Chief Judge Morris concurs. Judge Vaughn dissents.

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Bluebook (online)

275 S.E.2d 538, 51 N.C. App. 233, 1981 N.C. App. LEXIS 2216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cooper-ncctapp-1981.

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