State v. Walker

• Decision Date: 16 December 1970
• Docket Number: No. 6,6
• Citation: 277 N.C. 403,177 S.E.2d 868
• Parties: STATE of North Carolina v. William Alexander WALKER.
• Court: North Carolina Supreme Court

Page 868

177 S.E.2d 868

277 N.C. 403

STATE of North Carolina v. William Alexander WALKER.

No. 6.

Supreme Court of North Carolina.

Dec. 16, 1970.

John C. Randall, Durham, for defendant appellant.

Robert Morgan, Atty. Gen., Dale Shepherd, Edward L. Eatman, Jr., Raleigh, Staff Atty., for the State.

HUSKINS, Justice:

In North Carolina credit is given for Time served under a previous sentence for the same conduct, but a defendant is not entitled to credit for time spent in custody awaiting trial. State v. Virgil, 276 N.C. 217, 172 S.E.2d 281 (1970). Until the date of his commitment on or about 21 April 1970, following certification to Durham Superior Court of the decision of the Court of Appeals filed 1 April 1970 and reported in 7 N.C.App. 548, 172 S.E.2d 881, defendant's status was that of a person under indictment awaiting trial in default of bond and not that of a prisoner serving a sentence. 'During this period, while in custody in default of bond, defendant was not serving a sentence as punishment for the conduct charged in the bill of indictment.' State v. Weaver, 264 N.C. 681, 142 S.E.2d 633 (1965).

The sixty days defendant spent in Cherry Hospital under observation was ordered before any trial had been held for the purpose of determining whether defendant was mentally competent to plead to the indictment and to assist counsel in the conduct of his defense. This order was for the protection of defendant's rights and was properly regarded by the Court of Appeals as time spent in custody awaiting trial. In no sense did it constitute service of a sentence because no trial had been conducted and no sentence pronounced.

In addition to Virgil and Weaver, heretofore cited, the following authorities are in accord with the views above expressed: Williams v. State, 269 N.C. 301, 152 S.E.2d 111 (1967); State v. Foster, 271 N.C. 727, 157 S.E.2d 542 (1967); State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). See Annotation, 35 A.L.R.2d 1283.

Defendant contends, however, that by virtue of G.S. § 15--186.1 he is entitled to credit for time spent in custody (November 20, 1968 to February 4, 1969) pending appeal of his felony conviction to the Court of Appeals.

Chapters 266 and 888 of the 1969 Session Laws (codified as G.S. § 15--186.1) were ratified, respectively, on April 22, 1969, and June 16, 1969. Defendant's last day in custody 'in lieu of bond pending appeal' was February 4, 1969. Thus these enactments designed to give credit on a prison sentence for all time spent in custody Pending appeal afford defendant no relief because (1) they are not retroactive and (2) they are By their language not applicable to this case in that defendant's sentence of imprisonment was reversed rather than affirmed by the Court of Appeals, 4 N.C.App. 478, 167 S.E.2d 18. Hence, G.S. § 15--186.1 does not apply.

Defendant is entitled to credit for time served on the three to six months sentence following commitment (said to be twenty-nine days) and nothing more. All other time in dispute was simply time spent in custody In lieu of bond awaiting trial, or time spent in custody In lieu of bond pending appeal for which credit is not authorized by G.S. 15--186.1.

The following language appears in State v. Weaver, supra: 'From the pronouncement of judgment * * * until said judgment was vacated * * * defendant's De facto status was that of a prisoner serving a sentence.' This language is entirely consistent with the views expressed here because Weaver was committed to State's Prison to serve his sentence on May 9, 1963--The same day on which judgment was pronounced. Thus he was serving his sentence and was neither in custody in lieu of bond awaiting trial nor in custody in lieu of bond pending appeal. Not so here. In this case defendant simply failed to make bond and obtain his release pending appeal of his felony conviction. As a result he remained in Durham County Jail from November 20, 1968, to February 4, 1969, when bail was posted and defendant was released. His release on bond at that time took place nearly three months prior to reversal of his felony conviction by the Court of Appeals on 30 April 1969. These facts conclusively show that defendant was in custody in default of bail pending appeal rather than in custody serving the felony sentence.

For the reasons stated, the decision of the Court of Appeals is

Affirmed.

BOBBITT, Chief Justice (dissenting).

I concur in the dissenting opinion of Justice Higgins. In addition to the views expressed therein, I direct attention to the matters discussed below.

On September 2, 1969, defendant tendered, and the court accepted, a plea of Nolo contendere to (simple) assault on a female, he being a male person. Imprisonment for six months was the maximum (imprisonment) punishment for this offense. G.S. § 14--33. The judgment pronounced imposed an indeterminate sentence of not less than three nor more than six months, which authorized the Commissioner of Correction to retain custody of defendant for the maximum term of six months. G.S. § 148--42, as amended by Section 9, Chapter 996, of the Session Law of 1967. Therefore, it appears affirmatively that the court did not take into consideration the time defendant was in custody (November 20, 1968, to February 4, 1969) pending his appeal from the (subsequently vacated) judgment based on the felony conviction. Indeed, the court denied defendant's request that he receive credit for his confinement in jail during this period.

If defendant is required to serve the maximum term imposed by the judgment of September 2, 1969, in addition to his confinement in jail from November 20, 1968, to February 4, 1969, his term of imprisonment will exceed that permitted by G.S. § 14--33. Cf. State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. The majority ignore or disregard the hard fact of defendant's actual confinement in jail from November 20, 1968, to February 4, 1969, on the ground he was not then Serving a sentence but was in custody in default of bond pending the outcome of his appeal. For this reason, it is asserted that defendant's involuntary confinement during this period should not be regarded as punishment.

Defendant had been at liberty under bond immediately preceding his conviction for the felony. When convicted, judgment was pronounced and defendant was ordered into custody. True, bond was set for his release pending appeal. Presumably he was unable to arrange for his release on bond until February 4, 1969. On appeal, the judgment under which he was confined pending appeal was Vacated. This dissent relates solely to the time he spent in jail under authority of the invalid judgment. In my opinion, involuntary confinement under an invalid judgment should be considered punishment.

If defendant had pleaded guilty or Nolo contendere to an offense punishable by imprisonment for a longer term, E.g., two years, it might well be assumed that his confinement in jail under the subsequently vacated felony conviction and judgment was taken into consideration when the court pronounced the three-six months sentence. Such is not the case here.

I agree that the 1969 Act now codified as G.S. § 15--186.1 does not apply. When applicable, that statute Requires that credit be given for the time spent in jail pending appeal when The judgment from which the appeal is taken Is affirmed. It is anomalous indeed to Allow credit for time spent in jail pending appeal under a conviction and judgment held to be valid and Disregard time spent in jail pending appeal if the conviction and the judgment pronounced are held to be invalid.

SHARP, J., joins in this opinion.

HIGGINS, Justice (dissenting):

The record discloses these facts:...