The defendant contends his sentence should not have been made active for six months in Case No. 75CRS8798 and we believe this contention has merit. Since the record is not clear that the defendant was originally sentenced to more than three months in prison, we hold that the judgment invoking the sentence in this case be vacated. Case No. 75CRS8798 is remand*380ed to the Superior Court of Surry County for the imposition of a sentence not to exceed three months.

The defendant by his second assignment of error contends that Judge Seay violated G.S. 1-180 by his questions and statement during the hearing in Superior Court. G.S. 1-180 imposes on trial judges the duty not to express an opinion before a jury as to whether a fact has been proved. Since it applies only to jury trials, it has no application in this case. We note that we have found nothing improper in Judge Seay’s questions or statements at the Superior Court hearing.

By his third assignment of error, the defendant challenges Judge Seay’s finding of fact number 3A. This finding of fact is as follows:

“That when placed on probation, the defendant was ordered to pay the cost of the Court action and restitution at a rate of $75.00 per month under the supervision of the probation Officer but before May 27, 1977. The defendant has failed to comply with the Judgment of the Court in that he has not made any of these $75.00 per month payments as ordered.”

The defendant contends that by the terms of the probation judgment he was not in violation unless he had failed to make full payment by 27 May 1977. The defendant also contends this finding of fact is incorrect because after probation had been revoked in the District Court and while the case was on appeal to the Superior Court, the defendant made a new arrangement for restitution with the probation officer, which was not violated by the defendant. We believe both of these contentions are without merit. Each of the four probation judgments provided that the defendant would make payments of $75.00 per month with full restitution to be made by 27 May 1977. We do not read the judgments to mean the defendant could not violate probation before 27 May 1977, so far as restitution was concerned. As to an agreement between the defendant and the probation officer that payments in a lesser amount would be made, it is not clear from the record that there was such an agreement; but if there were, we hold that it would not be binding at the revocation hearing.

The defendant also contends that the Court was divested of jurisdiction so far as restitution was concerned because he had *381filed a petition for bankruptcy. The defendant relies on In re Penny, 414 F. Supp. 1113 (W.D.N.C. 1976). We believe that case is distinguishable. In the Penny case, the defendant was declared bankrupt before he was charged in a warrant with issuing a worthless check. He had listed his liability on the check in his petition for bankruptcy and was under order of the federal court not to pay it except under the supervision of the bankruptcy court. In this case, the defendant did not file his petition for bankruptcy until several months after he had pled guilty in the District Court of Surry County to issuing the worthless checks. He had been found in violation of the terms of his suspended sentence and his probation had been revoked by the District Court before he filed a petition in bankruptcy. The revocation of this suspended sentence in no way interfered with the order of the bankruptcy court since there was no such order at the time probation was revoked.

In Case No. 75CRS8798, judgment vacated and cause remanded.

Affirmed in Cases No. 75CRS8999, No. 75CRS9000, and No. 75CRS9215.