State v. Brackett
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-550 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. Cleveland County Nos. 10 CRS 893-94 BOBBY RAY BRACKETT Appeal by defendant from judgments entered 1 December 2011 by Judge James W. Morgan in Cleveland County Superior Court. Heard in the Court of Appeals 26 November 2012. Attorney General Roy Cooper, by Special General Angel E. Gray, for the State. Deputy Attorney Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant. HUNTER, Robert C., Judge. Defendant revoking his Bobby Ray probation. Brackett appeals Defendant from contends the the judgments trial court failed to make sufficient findings of fact to demonstrate it considered his probation. excuse that he did not willfully violate his We affirm the judgments but remand for correction of clerical errors. -2On 1 March 2011, defendant pled guilty to two counts of indecent liberties with a child. Defendant was placed on probation, but was sentenced to consecutive split-sentences of five months imprisonment. Defendant was also required to comply with all the conditions of the sex offender control program, including not possessing any sexually stimulating or sexually oriented materials or any children s videos. Defendant signed acknowledgements of the conditions of his probation at the time of his plea and at the time he was released from prison in October of 2011. On 1 November violation videos reports and 2011, defendant s alleging children s probation defendant videos. At officer possessed the filed pornographic probation revocation hearing, defendant testified he was not aware the prohibited materials were in his home. the evidence presented The trial court found [b]ased on . . . the defendant had willfully violated the terms of his probation as outlined in the violation report. activated The the trial court suspended notice of appeal. revoked defendant s sentences. Defendant probation filed and written -3Defendant s sole argument on appeal is that the trial court failed to make sufficient findings of fact addressing his claim that he did not willfully violate his probation. We disagree. Because probation is an act of grace by the State to one convicted of a crime[,] . . . an alleged violation of a probationary condition need not be proven beyond a reasonable doubt. 414 State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, (1999) (citation and internal quotation marks omitted). All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation. 496 S.E.2d 842, 846 State v. White, 129 N.C. App. 52, 58, (1998), improvidently allowed in part, (1999). aff d in part, 350 N.C. 302, disc. review 512 S.E.2d 424 Although a trial court is required to make findings of fact showing it considered the evidence presented at a probation revocation hearing, addressing each defendant. it is excuse for not required non-compliance to make presented findings by the State v. Belcher, 173 N.C. App. 620, 624-25, 619 S.E.2d 567, 570 (2005) (citation omitted). In this case, the trial court s oral findings of fact are sufficient to support the revocation of defendant s probation. -4Defendant does not dispute the evidence that the prohibited items were found in his home. In open court, the trial court announced the it had considered evidence and defendant had willfully violated his probation. determined Although the trial court s finding does not specifically address defendant s claim he was not aware the prohibited items were in his home, it sufficiently evidence demonstrates presented and the trial exercised its court considered discretion defendant s excuse for his violations. by the rejecting Accordingly, we affirm the trial court s judgments revoking defendant s probation. In addition, we note that the trial court made an apparent clerical error on the written judgments. been defined . . . as: [A]n error Clerical error has resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination. State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black s Law Dictionary 563 (7th ed. 1999)). When, on appeal, a clerical error is discovered in the trial court s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth. State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted). -5Defendant denied the probation violations were willful, and at the orally conclusion found of defendant the had probation hearing willfully based on the evidence presented. the violated trial his court probation In the written judgments, however, the trial court checked the boxes indicating defendant had admitted to violating his probation. Thus, the judgments do not accurately reflect the trial court s oral findings at that hearing. From the record, it appears that this variance was a mistake in recording the trial court s oral findings rather than the result of a judicial determination and constitutes clerical error. Accordingly, we remand the judgments for correction of the clerical errors. Affirmed; remanded for correction of clerical errors. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
