{ "id": 9133054, "name": "STATE OF NORTH CAROLINA v. DENNIS LEE WINGATE", "name_abbreviation": "State v. Wingate", "decision_date": "2002-04-16", "docket_number": "No. COA01-393", "first_page": "879", "last_page": "882", "citations": [ { "type": "official", "cite": "149 N.C. App. 879" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 148-33.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "267 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "396" }, { "page": "396" }, { "page": "396" }, { "page": "396-97", "parenthetical": "affirming the recommendation of the imposition of costs as a condition to work release" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550646 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "502-03" }, { "page": "503" }, { "page": "503" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0502-01" ] }, { "cite": "245 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "815" }, { "page": "816" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551952 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "238" }, { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0234-01" ] }, { "cite": "349 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737384 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0502-01" ] }, { "cite": "338 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524066 ], "year": 1986, "pin_cites": [ { "page": "757" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0753-01" ] }, { "cite": "252 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "857" }, { "page": "857" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551049 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "420" }, { "page": "420-21" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0418-01" ] } ], "analysis": { "cardinality": 416, "char_count": 7977, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21472120575369452 }, "sha256": "ebcedcd746793db176ff552f79db50bdb46128634934efe8e9fd735f051ccc9b", "simhash": "1:83887c62e34e1ce4", "word_count": 1271 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CAMPBELL concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DENNIS LEE WINGATE" ], "opinions": [ { "text": "GREENE, Judge.\nDennis Lee Wingate (Defendant), by writ of certiorari, appeals a judgment dated 11 October 2000 revoking his probation and entering an active sentence on his 19 January 2000 guilty plea to perjury.\nOn 19 January 2000, Defendant pled guilty to perjury and was sentenced to a minimum term of 21 months and a maximum term of 26 months. The trial court suspended Defendant\u2019s sentence and placed him on supervised probation for 36 months. Pursuant to the trial court\u2019s judgment suspending sentence, Defendant was required to: keep scheduled appointments with a probation officer; commit no criminal offense; remain within his county of residence unless granted written permission to leave by his probation officer; complete fifty hours of community service; be in his place of residence between the hours of 6 p.m. and 6 a.m.; not use, possess, or control any illegal drug or controlled substance; and participate in any counseling, treatment, or education program as directed by the probation officer. In addition, the trial court imposed monetary conditions on Defendant\u2019s suspended sentence and ordered him to pay a total amount of $2,231.00, including: $231.00 in costs; a $1,500.00 fine due to Cabarrus County; a $100.00 community service fee; and $400.00 in attorney\u2019s fees.\nOn 28 July 2000, Catherine Andre (Andre), Defendant\u2019s probation officer, filed a violation report alleging Defendant had: violated the monetary conditions of his probation; failed to keep scheduled appointments; failed to participate in an evaluation, counseling, treatment or education program as directed by Andre; tested positive for cocaine use on four different occasions; violated his curfew on four occasions; left his county of residence without Andre\u2019s permission; and been held in a jail in Chesterfield, South Carolina, on 19 July 2000 for driving while license revoked and providing fictitious information.\nOn 11 October 2000, the trial court held a probation violation hearing and Defendant admitted the violations but argued \u201cdrug addiction . . . kept him from meeting his obligations.\u201d The trial court found the violations contained in the report had been admitted and were willful. Thereafter, the trial court revoked Defendant\u2019s proba tion and activated his sentence. Both in court and in its written order, the trial court recommended that \u201cas a condition of work release if granted[, Defendant] pay monies owed in [the 19 January 2000] judg[]ment suspending sentence.\u201d\nThe dispositive issue is whether the trial court erred in recommending that if work release were granted, Defendant pay monies owed under the judgment suspending sentence.\nInitially we note Defendant failed to object to the trial court\u2019s recommendation that if work release were granted, Defendant pay the amounts ordered under the 19 January 2000 judgment and therefore has not preserved the issue for appellate review. N.C.R. App. P. 10(b)(1). Nevertheless, in order to prevent manifest injustice to Defendant, we address Defendant\u2019s argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 2 (Rules of Appellate Procedure may be suspended to \u201cprevent manifest injustice to a party\u201d).\nWhen an active sentence is imposed, a trial court is permitted to recommend to the Secretary of the Department of Correction that restitution or reparation be imposed as a condition of attaining work-release privileges. N.C.G.S. \u00a7 148-33.2(c) (1999). The Secretary of the Department of Correction is \u201cnot required to follow the trial court\u2019s recommendation.\u201d State v. Lambert, 40 N.C. App. 418, 420, 252 S.E.2d 855, 857 (1979). \u201cEven though [the trial court\u2019s] recommendations . . . are not binding,\u201d the trial court is not permitted to make unsupported recommendations. State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560, aff\u2019d per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986). Thus, the trial court\u2019s recommendation should \u201cbe in accordance with the applicable provisions of G.S. 15A-1343(d) and Article 81C of Chapter 15A of the General Statutes.\u201d N.C.G.S. \u00a7 148-33.2(c). Within statutory limitations, the trial court\u2019s recommendation \u201cfor restitution or restoration to the aggrieved party as a condition of attaining work-release privileges\u201d should fulfill the purpose of \u201crehabilitation and not additional penalty or punishment, and the sum ordered or recommended must be reasonably related to the damages incurred.\u201d State v. Killian, 37 N.C. App. 234, 238, 245 S.E.2d 812, 815 (1978). Our courts have held that a trial court is permitted to recommend as a condition to work release: \u201crestitution to a party injured by criminal activity,\u201d Lambert, 40 N.C. App. at 420-21, 252 S.E.2d at 857; restitution for attorney\u2019s fees, State v. Alexander, 47 N.C. App. 502, 502-03, 267 S.E.2d 396, 396 (1980); the imposition of costs, see id.; and the costs of the defendant\u2019s keep, see Killian, 37 N.C. App. at 239, 245 S.E.2d at 816. The trial court, however, is prohibited from recommending the imposition of a fine because \u201ca fine is not \u2018restitution or reparation\u2019 within the meaning of [N.C. Gen. Stat. \u00a7 148-33.2(c)].\u201d Alexander, 47 N.C. App. at 503, 267 S.E.2d at 396.\nIn this case, the judgment suspending sentence imposed as monetary conditions: $231.00 in costs; a $1,500.00 fine due to Cabarrus County; a $100.00 community service fee; and $400.00 in attorney\u2019s fees. Upon revocation of Defendant\u2019s probation and activation of his sentence, the trial court was permitted to recommend Defendant pay, as a condition to work release if granted, the $231.00 in costs and the $400.00 in attorney\u2019s fees. Provided the community service fee had been incurred by the State and constituted damages as a result of Defendant\u2019s commission of the crime, instead of an additional penalty or punishment, the trial court was permitted to recommend Defendant pay community service fees as a condition to work release. The trial court, however, was not permitted to recommend the imposition of a $1,500.00 fine as a condition to work release. Accordingly, we modify the trial court\u2019s judgment by striking that portion recommending the payment of a $1,500.00 fine, see Alexander, 47 N.C. App. at 503, 267 S.E.2d at 396, and remand for the trial court to determine if the community service fee was a cost actually incurred by the State.\nModified and remanded.\nJudges McGEE and CAMPBELL concur.\n. Defendant argues in his brief to this court that the \u201c[community [s]ervice fee is a normal operating expense of local or State government and as such cannot be considered \u2018restitution.\u2019 \u201d We disagree. Because the community service expenses for Defendant would not have been incurred absent the commission of a crime by Defendant, it is not a normal operating expense of government. See Alexander, 47 N.C. App. at 503, 267 S.E.2d at 396-97 (affirming the recommendation of the imposition of costs as a condition to work release).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Emery E. Milliken, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DENNIS LEE WINGATE\nNo. COA01-393\n(Filed 16 April 2002)\nProbation and Parole\u2014 work release \u2014 fines, fees, and costs\nThe trial court in a probation revocation was permitted to recommend that defendant pay costs and attorney fees as a condition if work release was granted, was not permitted to recommend a fine as a condition of work release, and was permitted to recommend a community service fee as a condition of work release provided the fee had been incurred by the State and constituted damages instead of additional punishment. The proceeding was remanded for the trial court to determine whether the fee was a cost actually incurred by the State.\nOn writ of certiorari to review judgment dated 11 October 2000 by Judge Beverly T. Beal in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 March 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Emery E. Milliken, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Julie Ramseur Lewis, for defendant-appellant." }, "file_name": "0879-01", "first_page_order": 913, "last_page_order": 916 }