Opinion
No. COA11–1322.
2012-05-1
STATE of North Carolina v. William James FRIEND, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State. William B. Gibson for defendant-appellant.
Appeal by defendant from judgment entered on or about 7 June 2011 by Judge Milton F. Fitch, Jr., in Superior Court, Hertford County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Larissa S. Williamson, for the State. William B. Gibson for defendant-appellant.
STROUD, Judge.
William James Friend (“defendant”) appeals from a conviction for one count of misdemeanor assault inflicting serious injury. Defendant contends the trial court erred in sentencing him to a 150–day active term and ordering him to pay $5,556.00 in restitution. For the following reasons, we remand for rehearing on the issue of restitution.
This matter was initially tried in district court on 14 April 2009, where defendant was found guilty of misdemeanor assault inflicting serious injury and ordered to pay restitution. Defendant appealed to the superior court for a trial de novo.
Defendant was tried on this charge at the 7 June 2011 Criminal Session of Superior Court, Hertford County. The State's evidence tended to show that on the night of 7 March 2009, Michael Scott (“Scott”) went to Zack's Coffeehouse to listen to music bands. When the band “Our Dying Decision” began to play, a “mosh pit” of about five to six people was created, when other listeners started to “jump around [and] knock into each other.” Scott stood off to the side of the mosh pit. A member of the band saw defendant come up behind Scott and kick him in the leg. Scott fell to the floor. Defendant, who stood over Scott, yelled at Scott until someone moved defendant away. Scott was taken to the hospital where he stayed overnight. Scott testified that he suffered a dislocated knee cap and a broken femur as a result of the incident.
A jury found defendant guilty of misdemeanor assault inflicting serious injury. The trial court sentenced defendant to an active term of 150 days and ordered defendant to pay restitution in the amount of $5,556.00. Defendant appeals.
Defendant first contends the trial court erroneously imposed a 150–day sentence for the Class A1 misdemeanor conviction when the court determined at the sentencing hearing that defendant should be sentenced as a prior record level II offender. Defendant argues, and the State agrees, that defendant was a prior record level II for misdemeanor sentencing purposes and should have received no more than a 75–day sentence pursuant to N.C. Gen.Stat. § 15A–1340.23(c).
Although not part of the record on appeal, we take judicial notice of the Department of Correction's records showing that defendant's 150–day sentence expired on 4 November 2011, resulting in his release. See State v. Cross, 188 N.C.App. 334, 335, 655 S.E.2d 725, 725 (2008) (taking judicial notice of Department of Correction's records indicating the defendant's date of release from custody). Our Court has stated that
[o]nce a defendant is released from custody, the subject matter of [that] assignment of error has ceased to exist and the issue is moot. However, when the terms of the judgment below have been fully carried out, if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom, then the issue is not moot[.]
State v. Stover, 200 N.C.App. 506, 509, 685 S.E.2d 127, 130 (2009) (citations and quotation marks omitted).
Here, defendant already has served his 150–day active sentence. Further, defendant has not argued to the Court any “collateral legal consequences of an adverse nature can reasonably be expected to result” from the trial court's error below. See id. (quotation marks omitted). Therefore, we hold that the issue of whether defendant's active 150–day sentence was erroneous is moot.
Defendant also contends the trial court erred in ordering him to pay restitution when the State failed to present evidence to support the restitution order. We agree.
The amount of restitution ordered by the trial court must be supported by competent evidence presented at trial or at sentencing. State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). A restitution worksheet, unsupported by testimony or documentation, is insufficient to support an order of restitution. See State v. Swann, 197 N.C.App. 221, 225, 676 S.E.2d 654, 657–58 (2009) (vacating restitution award where “victim did not testify and [restitution] worksheet was not supported by any documentation”); see also State v. Calvino, 179 N.C.App. 219, 223, 632 S.E.2d 839, 843 (2006) (vacating restitution order where defendant did not stipulate to restitution amount and no evidence was introduced at trial or at sentencing in support of the amount).
Here, at the sentencing hearing, the prosecutor introduced a restitution worksheet detailing the calculation of the restitution amount. The trial court stated “[s]hould [defendant] make work-release or early release he is ordered to pay restitution in the amount of $5,556 as set out on the restitution worksheet.” Because defendant did not stipulate to the restitution amount and no evidence was presented at trial or at sentencing supporting the restitution worksheet, the trial court erred in ordering defendant to pay $5,556.00 in restitution. We, therefore, vacate the trial court's restitution order and remand for rehearing on the issue.
VACATED IN PART AND REMANDED. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).