State v. Weaver

Decision Date18 June 1965
Docket NumberNo. 824,824
Citation264 N.C. 681,142 S.E.2d 633
PartiesSTATE, v. Walter WEAVER.
CourtNorth Carolina Supreme Court

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock for the State.

W. R. Dalton, Jr., Burlington, for defendant appellant.

BOBBITT, Justice.

Defendant does not challenge the validity of the trial and verdict at December 1964 Session. He contends, based on facts narrated below, that the judgment pronounced at said term is erroneous and excessive because it fails to credit on the two-year sentence it imposes the time between the date of the (subsequently vacated) judgment pronounced at May 1963 Session and the date of the judgment pronounced at December 1964 Session.

The minutes of the May 1963 Session show 'defendant in person and thru his attorney, W. F. Briley,' pleaded nolo contendere to felonious assault as charged in the bill of indictment. Judgment, imposing a prison sentence of not less than five nor more than seven years, was pronounced. The said minutes contain no reference to when or by whom Mr. Briley was employed or appointed. On May 9, 1963 defendant was committed to State's Prison to serve said sentence.

On September 25, 1964, after a habeas corpus hearing in the United States District Court for the Middle District of North Carolina, Stanley, Chief Judge, based on findings of fact and conclusions of law set forth in a memorandum opinion, 'ORDERED, ADJUDGED AND DECREED that the petitioner's plea of nolo contendere entered on May 9, 1963, and the judgment pronounced thereon, are vacated and set aside, and that the petitioner be granted a new trial.' It was FURTHER ORDERED' (1) 'that unless the State of North Carolina elects to retry and retries the petitioner within six months from September 25, 1964, an Order will be entered, upon application of petitioner, discharging him from custody,' and (2) 'that the petitioner be admitted to bond in the sum of $2,500.00 to be approved by the Clerk of the Superior Court of Alamance County, pending his new trial.' Apparently, defendant did not make bond and obtain his release 'pending his new trial.' At his trial at December 1964 Session he testified he had been confined in Alamance County Jail since Cotober 8, 1964.

Defendant was indicted for assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death, the felony created and defined by G.S. § 14-32. State v. Jones, 258 N.C. 89, 128 S.C.2d 1. Upon conviction, the punishment prescribed by the statute is imprisonment 'for a period not less than four months nor more than ten years.'

Assault with a deadly weapon is a general misdemeanor, punishable by fine or imprisonment or both, 'at the discretion of the court,' G.S. § 14-33, the maximum legal sentence therefor being two years. State v. Austin, 241 N.C. 548, 550, 85 S.E.2d 924. It is an essential element of the felony created and defined by G.S. § 14-32, being an included 'less degree of the same crime.' G.S. § 15-170; G.S. § 15-169.

At defendant's trial at December 1964 Session on said felony indictment, there being evidence such included crime of less degree was committed, the court properly instructed the jury that guilty of an assault with a deadly weapon was a permissible verdict. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; State v. Jones, 264 N.C. 134, 141 S.E.2d 27. The jury acquitted defendant of the felony charge but found him guilty of assault with a deadly weapon, a general misdemeanor.

The following distinction is noted: From the pronouncement of judgment at May 1963 Session until said judgment was vacated by Judge Stanley's order of September 25, 1964, defendant's de facto status was that of a prisoner serving a sentence. From September 25, 1964 until the pronouncement of judgment at December 1964 Session, defendant's status was that of a person under indictment awaiting trial and in custody on account of failure to give the appearance bond fixed by Judge Stanley's order.

The Attorney General's position is that, under our decisions in State v. Williams, 261 N.C. 172, 134 S.E.2d 163; State v. White, 262 N.C. 52, 136 S.E.2d 205, cert. den., 379 U.S. 1005, 85 S.Ct. 726, 13 L.Ed.2d 707; State v. Anderson, 262 N.C. 491, 137 S.E.2d 823; State v. Slade, 264 N.C. 70, 140 S.W.2d 723, defendant is not entitled to any credit as a matter of right.

The present case is factually distinguishable from Williams, White, Anderson and Slade in one respect, namely, that this defendant, when retried on the identical bill of indictment, was not convicted of the idential crime (the felony) but of an included 'less degree of the same crime.' It is factually distinguishable from White, Anderson and Slade, but not from Williams, in this respect: The judgment pronounced at December 1964 Session, upon defendant's conviction of assault with a deadly weapon, imposed the maximum legal sentence. In White, Anderson and Slade, the total of the sentence pronounced at retrial and the time served under the vacated judgment was within the legal maximum.

The Goff cases, discussed below, bear upon defendant's status during the period from the pronouncement of judgment at May 1963 Session until said judgment was vacated by Judge Stanley's order of September 25, 1964.

At August 1961 Criminal Term of Pitt, Arthur Goff, in Case No. 7752, was indicted and convicted of relonious assault and sentenced to a prison term of not less than seven nor more than ten years. Subsequently, in post-conviction proceedings, the verdict, judgment and commitment were vacated on the ground that, applying retroactively the 1963 decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, which overruled the 1942 decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 Goff had been denied his constitutional right to counsel. State v. Goff, 263 N.C. 515, 139 S.E.2d 695, decided January 15, 1965.

On August 10, 1964, while serving said sentence in Case No. 7752, Goff escaped; and, at January-February 1965 Session of Sampson, he pleaded guilty to said escape and judgment imposing a sentence of six months was pronounced. In habeas corpus proceedings, Goff Contended his plea and the judgment in said escape case should be vacated on the ground he was not in lawful custody when the alleged escape occurred. On certiorari to review an order releasing Goff from custody in respect of said sentence for said escape, this Court reversed. Our decision was based on the proposition that the judgment pronounced in Case No. 7752 at August 1961 Criminal Term was not void. It was erroneous, voidable at the instance of defendant; and an escape while in custody pursuant to said judgment was an escape from lawful custody notwithstanding the judgment was thereafter vacated in appropriate legal proceedings. State v. Goff, N.C., 142 S.E.2d 142, decided June 2, 1965.

It is well established in this jurisdiction that a judgment imposing a sentence in excess of the legal limit (1) is void as to the excess and (2) erroneous as to the portion within the legal limit. If the time already served by the petitioner equals or exceeds the legal limit, the prisioner is entitled to his discharge in habeas corpus proceedings. State v. Austin, supra. If not, the judgment must be vacated and the cause remanded for proper sentencing; and, when proper sentence is pronounced, the defendant is to be given credict for the time he served as a prisoner under sentence pronounced in the vacated judgment. State v. Austin, supra; State v. Templeton, 237 N.C. 440, 75 S.E.2d 243; State v. Miller, 237 N.C. 427, 75 S.E.2d 242; In re Sellers, 234 N.C. 648, 68 S.E.2d 308; State v. Green, 85 N.C. 600. As stated by Barnhill, J. (later C. J.), in In re Sellers, supra: 'The court below, in pronouncing sentence, should be careful to so condition its judgment as to allow petitioner credit for the time he has served in execution of the sentence hereby vacated.'

Decisions of this Court cited in the preceding paragraph appear to be in accord with the weight of authority. There are decisions contra, some of which turn upon whether the vacated judgement is considered void or erroneous. See Annotation, 'Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial.' 35 A.L.R.2d 1283, particularly § 5, pp. 1288-1291.

In Lewis v. Commonwealth, 329 Mass. 445, 108 N.E.2d 922, 35 A.L.R.2d 1277, which is in accord with our decisions, Qua, C. J., said: 'It is hardly realistic to say that nine months in the State prison amount to nothing--that since the petitioner 'should not have been imprisoned as he was, he was not imprisoned...

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  • North Carolina v. Pearce Simpson v. Rice
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    ...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 such credit.6 Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala.A......
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