{
  "id": 8526495,
  "name": "STATE OF NORTH CAROLINA v. FRANK LEWIS PARTRIDGE",
  "name_abbreviation": "State v. Partridge",
  "decision_date": "1993-07-06",
  "docket_number": "No. 9210SC862",
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  "last_updated": "2023-07-14T20:46:54.224272+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges EAGLES and LEWIS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FRANK LEWIS PARTRIDGE"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendant appeals from a judgment entered 30 April 1992, revoking defendant\u2019s probation, activating defendant\u2019s suspended sentence, and sentencing defendant to a term of ten years.\nOn 10 December 1991, judgment was entered suspending defendant\u2019s sentence of two five-year consecutive terms based on pleas of guilty to five counts of forgery and five counts of uttering. Defendant was placed on supervised probation. On 31 March 1992, defendant\u2019s probation officer filed violation reports charging that defendant had violated the terms of his probation by being convicted of larceny of an automobile on 30 March 1992. A hearing on the officer\u2019s report was held pursuant to N.C.G.S. \u00a7 15A-1345(e) on 30 April 1992 in Wake County Superior Court, the Honorable George R. Greene presiding, at which defendant admitted the probation violation. The following exchange then occurred:\nCOURT: Do you wish to be heard?\n[Defendant\u2019s Attorney]: Yes, sir. I do.\nCOURT: I already know what I am going to do despite anything you say.\n[Defendant\u2019s Attorney]: Well, despite that, I\u2014\nCOURT: I am going to revoke him but I will order that his sentence on revocation run concurrent with what he is now doing.\n[Defendant\u2019s Attorney]: Okay, Your Honor. I would ask for a modification. He got five years on the forgery and five years on the uttering. They run\u2014\nCOURT: I can\u2019t run those concurrent. I can\u2019t touch that. Only the Court of Appeals or North Carolina Supreme Court can change that.\nJudge Greene then revoked defendant\u2019s probation and activated his original sentence of two consecutive five-year terms. Defendant appeals.\nThe issue presented is whether the trial court\u2019s determination that it had no authority to reduce defendant\u2019s suspended sentence prior to activating it by imposing concurrent rather than consecutive terms entitles defendant to a new revocation of probation hearing.\nIf a convicted defendant, without lawful excuse, violates a valid condition of probation prior to the expiration of the probation period, the trial court may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing. N.C.G.S. \u00a7 15A-1344(d) (1988); State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Prior to activating the original sentence, the court may reduce the sentence. N.C.G.S. \u00a7 15A-1344(d); State v. Mills, 86 N.C. App. 479, 480, 358 S.E.2d 86, 87 (1987).\nIn the instant case, pursuant to Section 15A-1344(d), Judge Greene had the discretion to reduce defendant\u2019s suspended sentence prior to activating it, which would include ordering that defendant\u2019s two five-year sentences run concurrently rather than consecutively. It is apparent from a reading of the transcript, however, that Judge Greene felt that he did not have the authority to do so. Therefore, defendant is entitled to a new revocation of probation hearing. Cf. Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988) (\u201c[wjhen a trial court has failed to exercise its discretion regarding a discretionary matter and has ruled on it under the mistaken impression it is required to rule a particular way as a matter of law, its holding must be reversed and the matter remanded for the trial court to exercise its discretion\u201d).\nReversed and remanded.\nJudges EAGLES and LEWIS concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Lorinzo L. Joyner, for the State.",
      "Bailey & Dixon, by Steven M. Fisher, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FRANK LEWIS PARTRIDGE\nNo. 9210SC862\n(Filed 6 July 1993)\nCriminal Law \u00a7 1524 (NCI4th) \u2014 probation revocation \u2014discretion to order concurrent rather than consecutive terms\nDefendant is entitled to a new probation revocation hearing where the trial judge at the probation revocation hearing erroneously believed that he had no discretion to reduce defendant\u2019s sentence by ordering that his two five-year terms run concurrently rather than consecutively as originally ordered. N.C.G.S. \u00a7 15A-1344(d).\nAm Jur 2d, Criminal Law \u00a7 578.\nAppeal by defendant from judgment entered 30 April 1992 in Wake County Superior Court by Judge George R. Greene. Heard in the Court of Appeals 16 June 1993.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Lorinzo L. Joyner, for the State.\nBailey & Dixon, by Steven M. Fisher, for defendant-appellant."
  },
  "file_name": "0786-01",
  "first_page_order": 816,
  "last_page_order": 818
}