State v. Stafford, No. 495

Docket NºNo. 495
Citation164 S.E.2d 371, 274 N.C. 519
Case DateDecember 09, 1968
CourtUnited States State Supreme Court of North Carolina

Page 371

164 S.E.2d 371
274 N.C. 519
STATE of North Carolina
v.
James Allen STAFFORD.
No. 495.
Supreme Court of North Carolina.
Dec. 9, 1968.

T. W. Bruton, Atty. Gen., and Dale Shepherd, Raleigh, Staff Atty., for the State.

Hatch, Little, Bunn & Jones by Frank R. Liggett, III, Raleigh, for petitioner-appellant.

SHARP, Justice.

Defendant's appeal presents for our reconsideration this question: Upon the retrial and conviction of an accused whose earlier conviction for the same offense was set aside upon appeal or in post-conviction proceedings because of a constitutional defect in the first trial, may the court impose a sentence severer than the one vacated?

The decisions of this Court have established the following rules for this jurisdiction: When, upon defendant's application, a sentence is set aside and a new trial ordered, the whole case is tried de novo. The former judgment, therefore, does not fix the maximum punishment which may be imposed after a second conviction. State v. Pearce, 268 N.C. 707, 151 S.E.2d 571; State v. Slade, 264 N.C. 70, 140 S.E.2d 723; State v. Merritt, 264 N.C. 716, 142 S.E.2d 687; State v. White, 262 N.C. 52, 136 S.E.2d 205, cert. denied, 379 U.S. 1005, 85 S.Ct. 726, 13 L.Ed.2d 707 (1965).

Page 374

The total of the time served under the two sentences, however, may not exceed the maximum sentence authorized by the applicable statute. State v. Foster, 271 N.C. 727, 157 S.E.2d 542; Williams v. State, 269 N.C. 301, 152 S.E.2d 111; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633; State v. Slade, supra. Furthermore, on Any subsequent sentence imposed for the same conduct, a defendant must be given full credit for all time served under the previous sentence. State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, supra. Accord, Lewis v. Commonwealth, 329 Mass. 445, 108 N.E.2d 922, 35 A.L.R.2d 1277 (1952). See King v. United States, 69 App.D.C. 10, 98 F.2d 291 (1938); Annot., 35 A.L.R.2d 1283, 1288 (1954).

[274 N.C. 523] The North Carolina rule that upon retrial the court hears the case as if it were being tried for the first time and may impose an increased sentence is in accord with the weight of authority. In Annot., 12 A.L.R.3d 978, 979--80 (1967) (wherein the cases on this point are collected), it is said: 'The majority of courts which have been faced with the issue have held or indicated that it is permissible, both in cases involving capital offenses and in those involving lesser offenses, to impose upon a defendant convicted at a new trial of the same crime of which he was previously convicted a more severe punishment than was imposed upon his earlier conviction.' Accord, 24 C.J.S. Criminal Law § 1426 (1961); 66 C.J.S. New Trial § 226 (1950); 39 Am.Jur. New Trial § 217 (1942).

To the question whether, upon a retrial, the defendant may be given an increased sentence, other courts have given five different answers:

1. Severer sentences are permissible and will be upheld unless they clearly flout constitutional standards of due process, and the judge need not articulate the reason for the differentiation in the sentence. United States ex rel. Starner v. Russell, 378 F.2d 808 (3d Cir. 1967), reh. denied 389 U.S. 889, 88 S.Ct. 166, 19 L.Ed.2d 189 (1967); United States v. Fairhurst, 388 F.2d 825 (3d Cir. 1968), cert. denied, 392 U.S. 912, 88 S.Ct. 2072, 20 L.Ed.2d 1370; United States v. Saunders, 272 F.Supp. 245 (E.D.Cal.1967); Hobbs v. State, 231 Md. 533, 191 A.2d 238 (1962), cert. denied 375 U.S. 914, 84 S.Ct. 212, 11 L.Ed.2d 153 (1963); King v. United States, supra; Sanders v. State, 239 Miss. 874, 125 So.2d 923, 85 A.L.R.2d 481 (1961); State v. Young, 200 Kan. 20, 434 P.2d 820 (1967). (In Newman v. Rodriquez, 375 F.2d 712 (10th Cir. 1967), it was held that upon reconviction following a new trial the state of New Mexico was not required to give credit for time served on a void sentence for the same offense.)

2. Increased sentences are absolutely prohibited. Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert. denied 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968); State v. Turner, 429 P.2d 565 (Or.1967). See also Walsh v. United States, 374 F.2d 421 (9th Cir. 1967) (Sentence imposed in absence of defendant, although erroneous and vacated, fixed maximum penalty.) People v. Ali, 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932 (1957).

3. Increased sentences are prohibited Unless events warranting an increased penalty occur and come to the court's attention subsequent to the first sentence, and are made affirmatively to appear. Marano v. United States, 374 F.2d 583 (1st Cir. 1967).

4. Increased sentences are permitted when the record affirmatively shows that the judge is not penalizing the defendant for [274 N.C. 524] having exercised his right to have his first sentence vacated. United States v. White, 382 F.2d 445 (7th Cir. 1967); cert. denied 389 U.S. 1052, 88 S.Ct. 796, 19 L.Ed.2d 846 (1968); Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967); Coke v. United States, 280 F.Supp. 97 (S.D.N.Y.1968); State v. Leonard, 39 Wis.2d 461, 159 N.W.2d 577 (1968); State v. Jacques, 99 N.J.Super. 230, 239 A.2d 252 (1968).

5. After a defendant has been tried and Convicted of murder in the first degree (or

Page 375

other capital crime), with a recommendation of life imprisonment, upon a retrial the prosecution may not seek the death penalty. The rationale is that the 'price of an appeal from an erroneous conviction' may not be 'set at risk of a man's life.' State v. Wolf, 46 N.J. 301, 216 A.2d 586, 12 A.L.R.3d 970 (1966). The rule enunciated in Wolf was not made applicable to a sentence imposed upon a plea of Non vult since upon such a plea the defendant could not have been sentenced to death, nor was it applied to a resentence for robbery in State v. Jacques, supra. See Beardslee v. United States, 387 F.2d 280, 297 (8th Cir. 1967), in which the court recognized the potential problem when it granted a new trial to a defendant convicted of murder in the first degree 'without capital punishment.'

The foregoing classification reveals the recent conflict between the federal circuits which have considered the question here involved. See Jack v. United States, 387 F.2d 471, 474 (9th Cir. 1967); United States v. White, supra, 382 F.2d at 448; Moon v. State, 1 Md.App. 569, 571, 232 A. 272, 278 (1967). The divergence between our views and those of the Court of Appeals for the Fourth Circuit, by whose decisions all federal district courts in North Carolina are bound, has put the utmost stress upon the 'delicate balance of federal-state relations.' We have, therefore, decided to re-examine the reasoning which has shaped our conflicting views.

The grounds upon which it is asserted that at any subsequent trial for the same offense a defendant cannot be sentenced to a longer term of imprisonment than he received upon his first conviction are these: (1) The risk of a greater sentence 'chills' meritorious appeals as well as frivolous ones. It imposes an unreasonable and fundamentally unfair condition upon a defendant's right to attack his conviction, which deprives him of due process of law. (2) An increased sentence deprives the successful movant or appellant of the equal protection of the laws. (3) An increased sentence is inconsistent with the constitutional prohibition against double jeopardy. The gist of the arguments supporting these hypotheses are set out in Marano v. United States, supra; Patton v. North Carolina, [274 N.C. 525] supra; and State v. Turner, supra. See also Van Alstyne, In Gideon's Wake, 74 Yale L.J. 606 (1965).

DUE PROCESS

The rationale of the due process claim is stated in Coke v. United States, supra, as follows: In essence it 'rests upon the suggested rejection of the theory that in appealing a criminal conviction a defendant consents to proceedings de novo, including resentence if the original judgment is vacated and a new trial ordered. This legal fiction is said to impose an unconstitutional condition upon the right of appeal putting defendants to a 'grisly choice' * * * either appealing a conviction rendered upon proceedings constitutionally unfair and risking harsher punishment, or abandoning that right and serving a prison term under a sentence invalid in all but name.'

In considering whether an increased sentence deprived a defendant of due process of law two fundamental principles must be weighed: (1) the right of every person convicted of crime to exercise his constitutional rights and to appeal his conviction and sentence without fear of reprisals, and (2) the right of every trial judge to remain in control of the case he is trying and to exercise his own judicial discretion freely. The first protects individual rights; the second, the freedom, integrity, and favorable repute of the judicial branch of the government. In our view, these rights are mutually dependent.

It goes without saying that no person should ever be penalized for exercising a constitutional right or his right of appeal. Not every auxiliary consequence unfavorable to a prisoner who has succeeded in vacating a sentence, however, can be classified as a penalty. In North Carolina, an aggrieved party has the absolute

Page 376

and unfettered right to appeal, and this Court has been alert to protect this right. In State v. Arthur Patton, Jr., 221 N.C. 117, 19 S.E.2d 142, the record disclosed that when the defendant gave notice of appeal from a fine of $25.00, the trial judge struck that judgment and imposed a prison sentence of ninety days. In remanding the case for resentence, Devin, J. (later C.J.), said: '(I)t 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. * * * This right ought not to be denied or abridged, nor should the attempt to exercise...

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36 practice notes
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given s......
  • State v. Cherry, No. 47
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 4, 1979
    ...in sentencing are the Defendant's age, character, education, environment, habits, mentality, propensities and record. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); State v. Dye, 268 N.C. 362, 150 S.E.2d 507 (1966); State v. Cooper, 238 N.C. 241, 77 S.E.2d 695 (1953). Such matters ......
  • State v. Sparrow
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...'Until recently, it was the general rule that a trial de novo meant a sentence de novo.' State v. Stafford, 274, N.C. 519, 531, 164 S.E.2d 371, 379. Defendants insist that the rule stated in Stafford, and supported by voluminous authority, was overruled by the decision in North Carolina v. ......
  • State v. Spencer, No. 46
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...by the Fourteenth Amendment and by Article I, Section 17, of the Constitution of North Carolina. Defendants insist that State v. Stafford, 274 N.C. 519, 164 S.E.2d 371, and similar holdings in this and other jurisdictions, have been overruled by North Carolina v. Pearce, 395 U.S. 711, 89 S.......
  • Request a trial to view additional results
36 cases
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; State v. Paige, 272 N.C. 417, 158 S.E.2d 522; State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. In any event, Pearce was given s......
  • State v. Cherry, No. 47
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 4, 1979
    ...in sentencing are the Defendant's age, character, education, environment, habits, mentality, propensities and record. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); State v. Dye, 268 N.C. 362, 150 S.E.2d 507 (1966); State v. Cooper, 238 N.C. 241, 77 S.E.2d 695 (1953). Such matters ......
  • State v. Sparrow
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...'Until recently, it was the general rule that a trial de novo meant a sentence de novo.' State v. Stafford, 274, N.C. 519, 531, 164 S.E.2d 371, 379. Defendants insist that the rule stated in Stafford, and supported by voluminous authority, was overruled by the decision in North Carolina v. ......
  • State v. Spencer, No. 46
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 13, 1970
    ...by the Fourteenth Amendment and by Article I, Section 17, of the Constitution of North Carolina. Defendants insist that State v. Stafford, 274 N.C. 519, 164 S.E.2d 371, and similar holdings in this and other jurisdictions, have been overruled by North Carolina v. Pearce, 395 U.S. 711, 89 S.......
  • Request a trial to view additional results

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