State v. Gainey, 258
Decision Date | 13 October 1965 |
Docket Number | No. 258,258 |
Citation | 265 N.C. 437,144 S.E.2d 249 |
Parties | STATE of North Carolina v. Rufus GAINEY. |
Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Staff Atty. T. Buie Costen, Raleigh, for the State.
Frederick E. Turnage, Rocky Mount, for defendant.
The defendant entered no exceptions in the trial below and assigns no error on this appeal. He does, however, attempt to raise two questions in his brief. (1) Did the court below commit error in conducting a post conviction hearing in the absence of the petitioner and by granting relief not requested in the petition? (2) Did the court below err in denying the defendant's motion for dismissal of prosecution on the ground of former jeopardy?
The record does not contain exceptions upon which appellant's alleged errors may be grounded.
A post conviction hearing is not a trial. It is not designed to be a second day in court, nor is it a substitute for appeal. It is a post conviction remedy to determine whether a defendant was deprived of any constitutional right in his original trial. This is a question of law for the court. State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615, and cited cases. Furthermore, there is no requirement that a defendant be present at a post conviction hearing. In pertinent part, G.S. § 15-221 reads as follows: * * *'
In the instant case, at the post conviction hearing, the petitioner was granted a new trial and thereafter elected to ratify the action of the court in granting such new trial.
On the second question above set out, when a prisoner obtains a new trial by virtue of a habeas corpus proceeding or a post conviction hearing, he accepts the hazards as well as the benefits of a new trial. State v. Anderson, 262 N.C. 491, 137 S.E.2d 823; State v. White, 262 N.C. 52, 136 S.E.2d 205. The plea of former jeopardy is without merit. Moreover, the appellant herein freely, voluntarily, without being influenced by anyone, without duress, and without promise of leniency, pleaded guilty to both offenses of which he was indicted. A subsequent plea of guilty constitutes a waiver of the plea of former jeopardy. 14 Am.Jur., ...
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