State v. Noles
| Decision Date | 17 November 1971 |
| Docket Number | No. 7127SC622,7127SC622 |
| Citation | 184 S.E.2d 409,12 N.C.App. 676 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. David J. NOLES. |
Atty. Gen. Robert Morgan, Ralph Moody, Special Counsel, Raleigh, by Assoc. Atty., Edwin M. Speas, Jr., Raleigh, for the State.
Joseph B. Roberts, III, Mount Holly, for defendant appellant.
Defendant's first two assignments of error attack the validity of the warrant upon which he was originally tried and the resulting judgment entered 13 July 1970 because there was no affirmative showing on the record that the defendant entered a plea of guilty understandingly and voluntarily. The defendant cites State v. Harris, 10 N.C.App. 553, 180 S.E.2d 29 (1971), as authority for his proposition, but the cases can be distinguished. Both cases involve appeals from an order activating suspended sentences and in both the contention was that guilty pleas not in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were entered. In Harris the defendant directly attacked the validity of the later judgment which was the basis for the activation of his original suspended sentence. In the present case, however, the defendant tries to attack collaterally the validity of the original judgment, where his sentence was suspended, in an appeal from the revocation of that suspension. It is here that the similarity ends and the difference lies. When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970). Questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack. The proper procedure which provides the defendant adequate opportunity for adjudication of claimed deprivations of constitutional rights is under the Post-Conviction Hearing Act. G.S. § 15--217 et seq. See State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968).
Even if a collateral attack on the original judgment were permissible, there is no showing on the record before us that the issue of the voluntariness of the guilty plea was raised at the revocation hearing.
By defendant's third and fourth assignments of error he...
To continue reading
Request your trial
-
State v. Pennell
...represented by counsel or whether he made a knowing and intelligent waiver of counsel..... This case is controlled by State v. Noles, 12 N.C.App. 676, 184 S.E.2d 409 (1971). Here as in Noles, the defendant tries to attack collaterally the validity of the original judgment where his sentence......
-
In re Webber
...challenge to that judgment and thus could not attack it on appeal of subsequent order activating her sentence); State v. Noles, 12 N.C.App. 676, 678, 184 S.E.2d 409, 410 (1971) ("Questioning the validity of the original judgment where sentence was suspended on appeal from an order activatin......
-
State v. Wilson, No. COA05-729 (N.C. App. 7/18/2006)
...for habitual impaired driving), appeal dismissed and disc. review denied, 336 N.C. 614, 447 S.E.2d 410 (1994); State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971) ("Questioning the validity of the original judgment where sentence was suspended on appeal from an order activatin......
-
State v. Shepard, No. COA09-86 (N.C. App. 9/15/2009)
...of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid[.]" State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971). The State further contends that Defendant is precluded from appealing this issue due to his guilty plea. See Stat......