Greene, Matter of

• Decision Date: 01 June 1979
• Docket Number: No. 152PC,152PC
• Citation: 255 S.E.2d 142,297 N.C. 305
• Parties: In the Matter of Judge George R. GREENE, District Court Judge, Tenth Judicial District.
• Court: North Carolina Supreme Court

Page 142

255 S.E.2d 142

297 N.C. 305

In the Matter of Judge George R. GREENE, District Court

Judge, Tenth Judicial District.

No. 152PC.

Supreme Court of North Carolina.

June 1, 1979.

Asst. Dist. Atty. Karl Edward Knudsen, Raleigh, for petitioner.

Kirk, Tantum & Hamrick by John E. Tantum, Wendell, for respondent.

WRIT OF PROHIBITION

BROCK, Justice.

This cause is before the Supreme Court of North Carolina upon petition and allegations of District Attorney, Tenth Prosecutorial District, said petition being labeled Petition for Writ of Mandamus. Judge Greene has responded to the said petition stating that he is agreeable to the facts as outlined in the petition. The facts as set out below are, therefore, not controverted.

On 11 November 1978 Richard Allen Godwin was convicted in District Court, Wake County, in case No. 78CR63698 upon his plea of guilty to operating a motor vehicle while under the influence of intoxicating liquor.

On 30 April 1979 Richard Allen Godwin was convicted in District Court, Wake County, in case No. 79CR18655 upon his plea of guilty to operating a motor vehicle while under the influence of intoxicating liquor, Second offense; and of driving while his operator's license was revoked.

On 30 April 1979 Judge George R. Greene was the presiding judge in District Court, Wake County, before whom Richard Allen Godwin entered his plea of guilty. Judge Greene entered a verdict of guilty as charged and sentenced Richard Allen Godwin to imprisonment for four months and suspended the entire sentence for four months upon the payment of $300.00 fine and the costs of court. The defendant was not assigned to any alcohol rehabilitation program for treatment in lieu of imprisonment.

North Carolina General Statute 20-179 as amended by Session Laws 1977, Second Session, ch. 1222 became effective 1 March 1979 and was in effect as the sentencing provision for the second offense to which Richard Allen Godwin pleaded guilty on 30 April 1979. The statute as amended reads in pertinent part as follows:

"(a) Every person who is convicted of violating G.S. 20-138, G.S. 20-139(a), or G.S. 20-139(b) shall be punished as follows:

(1) . . . ;

(2) for a conviction of a second offense, imprisonment for not less than three days nor more than one year and a fine not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00);

(3) . . . .

The first three days of imprisonment pursuant to subsections (2) and (3) above shall not be subject to suspension or parole; provided that in lieu of such imprisonment pursuant to subsection (2) above the court may allow the defendant to participate in a program for alcohol or drug rehabilitation approved for this purpose by the Department of Human Resources; and upon defendant's successful completion of such program the court may suspend all or any part of the term of imprisonment. Convictions for offenses occurring prior to July 1, 1978, or more than three years prior to the current offense shall not be considered prior offenses for the purpose of subsections (2) and (3) above. (Emphasis added.)"

The Assistant District Attorney brought to the attention of Judge Greene the requirements of G.S. 20-179 that the defendant be sentenced to at least three days of active imprisonment or be assigned to an approved alcohol rehabilitation program. Judge Greene stated that it was his opinion that he had the inherent power to suspend all of the sentence he imposed.

By his response to the petition filed in this Court Judge Greene asserts that he "had the inherent power to suspend the sentence given Richard Allen Godwin and any attempt by the Legislature to infringe on such inherent power is unconstitutional and therefore void."

At the outset we observe that the first offense of driving under the influence charged against Richard Allen Godwin occurred on 21 October 1978, which was subsequent to 1 July 1978 and within three years of the second offense of driving under the influence charged against him, the second offense having occurred on 26 March 1979. The provisions of the statute in question became effective 1 March 1979. Therefore the first and second offenses charged against Richard Allen Godwin fall clearly within the purview of the amended statute.

We are not here concerned with the plenary inherent powers of the courts to provide for, supervise, and direct the conduct of the business of the courts and the proceedings before them. Nor are we here concerned with the plenary inherent power of the courts temporarily to delay, for judicial purposes, pronouncement of judgment or execution of sentence under a pronounced judgment, so as to afford time to consider post-trial motions, to prevent a miscarriage of justice, and for other like purposes contemplated by law and justice. For these reasons the pronouncement of judgment may be deferred, but only for a reasonable time. We address only the claimed "inherent" power of the court to continue prayer for judgment on conditions or suspend execution of sentence on conditions.

When prayer for judgment is continued without conditions, the pronouncement of judgment is suspended. When judgment is pronounced and sentence is suspended on conditions, execution of sentence is stayed. When either judgment or sentence is suspended on conditions, the ultimate purpose is the same. State v. Miller, 225 N.C. 213, 34 S.E.2d 143 (1945).

We begin with certain basic premises provided by the Constitution of North Carolina. Article I, Section 6, provides: "The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other." Article II, Section 1, provides: "The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives." Article III, Section 5(6), provides: "The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, . . . ." Article IV, Section 1, provides: "The judicial power of the State shall . . . be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a coordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article."

Legislative powers and clemency powers are not constitutionally vested in the Judicial Branch of government. Those powers are constitutionally vested in the General Assembly and the Executive. Unfortunately, there are statements in numerous of our cases to the effect that the courts have the "inherent" power to suspend execution of sentence. E. g., State v. Simmington, 235 N.C. 612, 70 S.E.2d 842 (1952). This use of the term "inherent" is highly misleading and obscures the true source of the power to suspend the execution of sentence. The power to suspend execution of sentence derives from the legislative power to prescribe punishment. In prescribing punishment the Legislature may be very specific or it may grant the trial judge discretion to determine punishment within limits prescribed by the Legislature. The seminal statement of this principle was made by Justice Gaston in State v. Bennett, 20 N.C. 170, 178 (1838):

"We are also of opinion that it was irregular to annex to the sentence any condition for its subsequent remission. We know that a practice has prevailed to some extent of inflicting fines with a provision that they should be diminished or remitted altogether upon matter thereafter to be done, or shown to the court by the person convicted. But we can find no authority in law for this practice, and feel ourselves bound upon this first occasion when it is brought judicially to our notice, to declare it illegal. A judgment, though pronounced by the judge, is not his sentence, but the sentence of the law. It is the certain and final conclusion of the law following upon ascertained premises. It must therefore be unconditional. When it has been rendered except that during the term in which it is rendered it is open for reconsideration the courts have discharged their functions, and have no authority to remit or mitigate the sentence of the law. Hawkin's, Book 2d, ch. 48, sec. 25; 1 Institutes, 260; King v. Wingfield, Cro.Car., 251. This is one of the high powers of the executive.

In cases where the law gives to the judges a discretion over the quantum of punishment they may, with propriety, suspend the sentence for the avowed purpose of affording to the convicted an opportunity to make restitution to the person peculiarly aggrieved by his offense, or to redress its mischievous public consequences. And when judgment is to be pronounced, the use which has been made of such opportunity is very proper to be considered by the court in the exercise of that discretion. Practically, therefore, every salutary effect of these provisional judgments is attainable without a departure from the forms of law. But if it were not, no considerations of expediency, or of supposed public convenience, can justify a departure from these, which are among the strong safeguards of public right and private security."

The trial courts of North Carolina continued the practice of continuing prayer for judgment on conditions and of suspending execution of sentence on conditions, and ultimately this Court specifically approved the practice in State v. Crook, 115 N.C. 760, 20 S.E. 513 (1894). Nonetheless, State v. Bennett, supra, specifically identifies the source of the trial judge's power to suspend execution of sentence. The power to define a crime and prescribe its punishment originates with the Legislative Branch. The power to continue prayer for judgment on conditions or to suspend execution of sentence on conditions does not arise from an "inhe...