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Criminal Practice – Probation Revocation – Restitution – Willful Failure to Pay – Stay – Appeals

Criminal Practice – Probation Revocation – Restitution – Willful Failure to Pay – Stay – Appeals

State v. Yonce. (Lawyers Weekly No. 10-07-1062, 18 pp.) (Sam Ervin IV, J.) Appealed from Randolph County Superior Court. (V. Bradford Long, J.) N.C. App. Click here to read the full text of the opinion.

Holding: Even though Judge Albright stayed enforcement of his judgment that defendant had willfully violated his parole by failing to pay restitution, defendant’s time for appealing the ruling was not delayed by the stay. Since defendant waited more than 14 days to appeal Judge Albright’s order, we lack jurisdiction to review the order.

We affirm Judge Long’s judgments activating defendant’s suspended sentences. We deny defendant’s motion for appropriate relief.

Where defendant presented no justification for his failure to pay restitution other than a delay in receiving an expected check for retroactive veteran’s benefits, Judge Long did not abuse his discretion in revoking defendant’s probation.

Defendant bases his motion for appropriate relief on trial counsel’s failure to either “obtain documentation from the [VA] to give to [Judge Albright] to support the request that defendant be continued on probation” or to ask “for a continuance to allow counsel to contact [the VA] to get the latest information on when defendant’s money would be received.” We are not persuaded.

Defendant’s evidence shows that he received $11,000 in retroactive veteran’s benefit payment in March 2009; however, defendant does not show that such evidence would have been available to trial counsel either at the Oct. 27, 2008 hearing before Judge Albright or at the Dec. 8, 2008 hearing before Judge Long. Defendant’s motion for appropriate relief lacks merit.

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