State v. May

• Decision Date: 24 June 1970
• Docket Number: No. 7018SC323,7018SC323
• Parties: STATE of North Carolina v. Lee MAY.
• Court: North Carolina Court of Appeals

Page 633

174 S.E.2d 633

8 N.C.App. 423

STATE of North Carolina v. Lee MAY.

No. 7018SC323.

Court of Appeals of North Carolina.

June 24, 1970.

Robert Morgan, Atty. Gen., by Sidney S. Eagles, Jr., Asst. Atty. Gen., and Russell G. Walker, Jr., Raleigh, Staff Atty., for the State.

Norman B. Smith, Greensboro, for defendant appellant.

GRAHAM, Judge.

Defendant assigns as error the court's action in changing the suspended sentences and imposing active sentences upon learning of defendant's intention to appeal.

'In criminal cases the right of appeal by a convicted defendant from a final judgment is unlimited in the courts of North Carolina. This right of appeal is a substantial right. G.S. § 15--180; State v. Hodge, 267 N.C. 238, 147 S.E.2d 881; State v. Darnell, 266 N.C. 640, 146 S.E.2d 800; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; State v. Blades, 209 N.C. 56, 182 S.E. 714. In State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9, we held that the execution of a sentence in a criminal action may not be suspended on conditions that conflict with the defendant's right of appeal.' State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651.

In State v. Patton, 221 N.C. 117, 19 S.E.2d 142, after the trial judge imposed sentence that prayer for judgment be continued on certain conditions, defendant entered notice of appeal. Thereupon the judge ordered the previous sentence stricken and imposed a sentence of 90 days in jail. In remanding the case for resentencing the Supreme Court, speaking through Devin, J., (later C.J.) stated:

'While undoubtedly the presiding judge had the power to change his judgment at any time during the term in his sound discretion (State v. Godwin, 210 N.C. 447, 187 S.E. 560), yet it seems here, under the circumstances described in the record, the action of the judge was induced by the defendant's expression of his intention to appeal. This tended to impose a penalty upon the defendant's right of appeal and to affect the exercise of his right to do so. C.S. § 4650; State v. Calcutt, 219 N.C. 545, 15 S.E.2d 9; State v. Burgess, 192 N.C. 668, 135 S.E. 771.

It may be noted that in the same statute wherein provision was made for the organization of this court, in 1818, it was declared that appeals might be taken from the sentence or judgment of the Superior Court 'in any cause of action, civil or criminal,' thus establishing the policy, ever since adhered to, of unlimited right of appeal to the Supreme Court by any party aggrieved. This right ought not to be denied or abridged, nor should the attempt to exercise this right impose upon the defendant an additional penalty or the enlargument of his sentence. Doubtless the trial judge felt impelled to change the sentence by the fact that he understood the defendant had consented to the judgment first imposed. But the defendant's consent to the terms of the judgment did not constitute a waiver of his right of appeal for errors to be assigned. The defendant would have had the right to appeal even if he had pleaded guilty. In State v. Calcutt, Supra, the judgment, which was imposed after the defendant in that case had pleaded guilty, was held to affect his right of appeal and was stricken out for that reason. In the language of Chief Justice Stacy, 'His appeal was allowed, and it is not to be supposed that any penalty was attached thereto or imposed as a result thereof."

The State has made no effort to distinguish the case at hand from the Patton case. We think it indistinguishable. The proper procedure would ordinarily be to remand the case to Superior Court for resentencing; however, for the reasons hereinafter set forth, a new trial is necessary.

The theory of defendant's defense, as shown by his evidence, was that he was assaulted by the officer before he had interferred in any manner with the officer in the performance of his duties and before he had been lawfully arrested;...