State v. Stevens

181 S.E.2d 159, 11 N.C. App. 402, 1971 N.C. App. LEXIS 1538

• Court: Court of Appeals of North Carolina
• Decided: May 26, 1971
• Docket: No. 7118SC274
• Status: Published

Opinion

BRITT, Judge.

Defendant’s sole contention is that the superior court did not make sufficient findings of fact to activate the prison sentence imposed in district court. We agree with the contention.

We think this appeal is controlled by the opinion of this court in State v. Langley, 3 N.C. App. 189, 164 S.E. 2d 529 (1968), and the opinion of the Supreme Court in State v. Davis, 243 N.C. 754, 92 S.E. 2d 177 (1956). Although Langley involved suspension of probation, we think the principle is the same and the pertinent holding of the court in Langley is stated in the seventh headnote to the opinion as follows: “Where, in a proceeding to revoke a judgment of probation, the trial court fails to make specific findings as to what condition of probation defendant had violated, the order revoking the probation judgment will be vacated and the cause remanded for a specific finding relating thereto.”

The pertinent holding of the Supreme Court in Davis appears to be set forth in the second headnote of the opinion as follows:

Where, upon hearing de novo on appeal to the Superior Court from an order activating a suspended sentence, the Superior Court fails to find wherein the defendant had violated the conditions of suspension, defendant is entitled to have the cause remanded for a specific finding in regard thereto, since only by such finding may defendant test the validity of the condition for violation of which the suspended execution was activated.

For the reasons stated, the judgment appealed from is vacated and this cause is remanded for further hearing consistent with this opinion.

Remanded.

Judges Campbell and Graham concur.