Smith's Criminal Case Compendium
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State v. McCullough, COA 24-361, ___ N.C. App. ___ (Dec. 17, 2024)
In this Cabarrus County case, defendant appealed the revocation of his probation, arguing error in determining defendant committed a new criminal offense and assessing fees. The Court of Appeals affirmed the order revoking defendant’s probation, but vacated the portion of the order charging defendant a duplicate attorney appointment fee, remanding for recalculation of the judgment and correction of a clerical error.
Defendant was charged with DWI and driving while license revoked in May of 2023. Defendant’s probation officer filed a violation report with the superior court alleging defendant had violated the terms of his probation by (1) committing new criminal offenses and (2) failing to pay court and supervision fees. Defendant’s probation expired on November 14, 2023, but the trial court scheduled a hearing on November 16, 2023, finding good cause to retain jurisdiction as the hearing was conducted during the same session of court as the expiration of probation. At the revocation hearing, defendant’s probation officer testified about the offenses charged against defendant, and the State introduced the warrant, an officer’s affidavit, and intoxilyzer result form from defendant’s arrest. Defense counsel objected to the probation officer testifying about the content of these items instead of the arresting officer, but the trial court overruled the objection. After revoking defendant’s probation, the trial court ordered a civil judgment for $325.00 in attorney fees as well as a $75.00 attorney appointment fee.
The Court of Appeals first dispensed with the defendant’s argument that there was insufficient evidence to show he committed a new criminal offense, looking to State v. Singletary, 290 N.C. App. 540 (2023). The court explained that “[a]lthough the arrest warrant is not sufficient . . . the charging officer’s affidavit and the intoxilyzer report were sufficient to allow the trial court to independently determine Defendant probably had committed the offenses of driving while impaired.” Slip Op. at 8. Considering defendant’s argument that the arresting officer’s testimony was necessary and it was error to denying defendant the ability to cross-examine him without good cause, the court again turned to Singletary, explaining that “[e]ven without the arresting officer’s affidavit or testimony, the trial court had sufficient evidence to independently determine a new offense of driving while impaired had been committed.” Id. at 9. Because this additional testimony would have been “merely extraneous,” the trial court did not err in failing to make a finding of good cause. Id.
Reviewing the “Judgment and Commitment Upon Revocation of Probation form,” the court determined that the trial court incorrectly checked box four, even though defendant’s failure to pay the fees alleged in the violation report was not a sufficient basis for revoking his probation. Id. at 10. The court looked to the transcript and determined that this was just a clerical error because the trial court clearly identified the new criminal conduct as the basis for revoking defendant’s probation. The court also noted that the $75 appointment fee authorized by G.S. 7A-455.1 was improperly charged twice, once during sentencing and again at the probation revocation hearing. The court remanded for the correction of the errors and recalculation of the judgment.