State v. Coats
Decision Date | 21 February 1973 |
Docket Number | No. 7211SC807,7211SC807 |
Parties | STATE of North Carolina v. Sherrill Allen COATS. |
Court | North Carolina Court of Appeals |
Atty. Gen. Robert Morgan, by Associate Atty. Gen. Howard A. Kramer, for the State.
Stewart & Hayes, by D. K. Stewart, Dunn, for defendant appellee.
The State may not appeal from a final judgment allowing a plea of former jeopardy or acquittal. State v. Reid, 263 N.C. 825, 140 S.E.2d 547. However, because of the apparent intrepidity with which the assistant solicitor sought, and the District Court judge allowed, the complete termination of defendant's trial on 16 November 1972 and the retrial of defendant on 30 November 1972, we feel that it should be stated that we agree with Judge Braswell's conclusion that jeopardy attached on 16 November 1972, and that under the facts of this case defendant was twice put in jeopardy for the same offense when he was again called to answer to the same charge on 30 November 1972. This complete termination of the trial and retrial over defendant's objection is a far cry from a brief recess in the trial, or from a mistrial ordered upon appropriate grounds.
The State does have a right to appeal when judgment has been given for a defendant upon declaring a statute unconstitutional. G.S. § 15--179(6). Under the procedure and theory followed in the Superior Court, the judgment was given for defendant only after G.S. § 15--177.1 was declared 'unconstitutional as it relates to the facts of this particular case.' It is upon this right that the State bases its appeal.
Defense counsel, the State, and the Superior Court judge all seem to have agreed that G.S. § 15--177.1 prevented defendant from asserting in Superior Court on appeal, a plea of former jeopardy for having been twice put in jeopardy in District Court. For the reasons hereinafter stated, we are of the opinion that G.S. § 15--177.1 presents no impediment to the consideration by the Superior Court upon appeal for a trial De novo of defendant's plea in bar for having been twice put in jeopardy in the District Court.
As we understand the theory which prevailed in the Superior Court in this case, the following could occur:
A defendant could be tried, convicted and sentenced in District Court. Over his plea of former jeopardy, he again could be tried, convicted and sentenced in District Court upon the same charge. If he then appealed to the Superior Court from this second conviction, the trial De novo provision of the statute (G.S. § 15--177.1) would prevent the Superior Court from considering his plea of former jeopardy.
This, of course, the statute does not do. It provides as follows:
'In all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced thereon.'
The primary purpose of the quoted statute is to allow a completely new trial in Superior Court without the burden of the plea, judgment, or proceedings in the inferior court In the trial from which defendant appealed. It does not remove from consideration in the trial De novo the plea, judgment, and proceedings of a trial in District Court which occurred Prior to the trial appealed from. Where a defendant conceives that he has once been placed in jeopardy and is brought to trial in District Court again upon the same charge, his plea of former jeopardy is cognizable in the District Court. If defendant's plea is overruled and he is convicted in the District Court in what he conceives to be a trial for an offense for which he has formerly been placed in jeopardy, upon appeal to the Superior Court for a trial De novo, he may properly reassert his plea of former jeopardy. We are not dealing with a situation in which a defendant is pleading former jeopardy for having been placed in jeopardy in District Court for the first time In the trial from which he has appealed. The inquiry is whether he has been placed in jeopardy for the same offense Prior to the time of the trial from which he has appealed. It is clear that the trial De novo in Superior Court does not itself constitute double jeopardy. This is not the question raised by the defendant's plea in this case.
From the recitations in the judgment of the Superior Court, it seems clear that the trial judge relied upon the principles enunciated in State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, and in State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897. The principles stated therein are clearly the law in this state; however, they have no application to the factual situation presented by the present appeal. We are advertent to the implications of State v. Stilley, 4 N.C.App. 638, 167 S.E.2d 529, and we disagree with its reasoning.
In Spencer the defendants were convicted in District Court and were sentenced to sixty days in jail. These sentences were suspended and defendants were placed on probation on certain conditions. Each defendant appealed to the Superior Court where, upon trial De novo by jury, they were again convicted. In Superior Court one defendant was given an active sentence of nine months and the other five were given active sentences of six months. On appeal defendants argued that these greater sentences in Superior Court deprived them of their constitutional right to trial by jury because the exercise of their right to appeal from District Court to Superior Court for trial De novo by jury was unduly restricted by the threat of a greater sentence upon conviction in Superior Court.
In laying this argument to rest the Supreme Court in Spencer stated:
In Sparrow the defendants were convicted and sentenced in the District Court. They appealed to Superior Court where they were tried De novo by a jury and again convicted. The sentences imposed in Superior Court were greater than those imposed in District Court. Defendants argued that the greater sentences in Superior Court deprived them of the Sixth Amendment right to trial by jury because the exercise of their right of appeal to the Superior Court, where they could be tried by jury, was unduly restricted because of the risk of a greater sentence upon conviction in the Superior Court.
In laying this argument to rest the Supreme Court in Sparrow stated:
In Sparrow the court also quoted with approval from State v. Morris, 275 N.C. 50, 61, 165 S.E.2d 245, 252 as follows:
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