State v. White, 654

Decision Date20 May 1964
Docket NumberNo. 654,654
Citation262 N.C. 52,136 S.E.2d 205
PartiesSTATE, v. Clarence WHITE.
CourtNorth Carolina Supreme Court

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

Wade H. Penny, Jr., Durham, for defendant appellant.

PARKER, Justice.

Since the citizens of North Carolina in the General Election of 6 November 1962, by a majority of the votes cast, amended Article IV of the State Constitution, Terms of the superior court are now designated in this Article of the Constitution as Sessions of court. At the May 1961 Criminal Term of Durham County superior court, Williams, J., presiding, defendant here was tried on the same indictment as in the instant case. There is nothing in the record before us to indicate as to whether or not Carlton M. Jones was tried with him at the May 1961 Criminal Term. He, Clarence White defendant here, entered a plea of not guilty. The jury returned against him a verdict of guilty as charged in the indictment. Williams, J., sentenced him to imprisonment for a term of ten years. He did not appeal and began to serve his sentence.

Subsequently--the date is not set forth in the record--defendant Clarence White filed a petition, by virtue of the provisions of G.S. Ch. 15, Art. 22, entitled 'Review of the Constitutionality of Criminal Trials,' requesting a new trial of his case which was tried at the May 1961 Criminal Term, for the reason that he requested the presiding judge at that trial to appoint counsel to represent him, stating that by reason of his poverty he was unable to employ counsel to represent him, and that the court refused to do so, and that he did not waive his right to be represented by counsel. At the July 1963 Criminal Session, Hall, J., heard his petition, and by reason of the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799--filed 18 March 1963--and acting under the power vested in him by G.S. Ch. 15, Art. 22, vacated the verdict of guilty as charged in the indictment returned against petitioner at the May 1961 Criminal Term and the judgment of imprisonment imposed upon petitioner at that term, and ordered a new trial for petitioner on the ground that he had been denied the right of counsel to represent him at his trial at the May 1961 Criminal Term.

Defendant has two assignments of error, both to the judgment. His first assignment of error is that Judge Latham 'erred in imposing upon the defendant a sentence greater than that imposed upon the defendant at his first trial when the defendant was convicted of the same identical offense.'

Defendant contends that the State in meeting its 'due process' duty of providing ways for a defendant after conviction to obtain a review of the constitutionality of his criminal trial cannot 'inhibit or clog' his right of review of the constitutionality of his trial by forcing him to accept the hazard of receiving a greater sentence than was imposed on him at his first trial, if he is successful in obtaining a new trial and is convicted again on the same indictment of the same offense; that this is a violation of his rights under the Fourteenth Amendment to the United States Constitution.

Defendant at his request was granted a new trial of his case tried at the May 1961 Criminal Term in which he was found guilty as charged in the indictment, which under our decisions results in a retrial of the whole case, verdict, judgment, and sentence. State v. Chase, 231 N.C. 589, 58 S.E.2d 364; State v. Correll, 229 N.C. 640, 50 S.E.2d 717, cert. den. 336 U.S. 969, 69 S.Ct. 941, 93 L.Ed. 1120; State v. Beal, 202 N.C. 266, 162 S.E. 561; State v. Stanton, 23 N.C. 424.

The indictment upon which defendant was convicted at both trials charges a violation of G.S. § 14-87, which statute provides that any person convicted of a violation of this section 'shall be punished by imprisonment for not less than five nor more than thirty years.' Nothing in the provisions of G.S. Ch. 15, Art. 22, or in any other statute of this State, limited the power of Judge Latham from imposing a heavier sentence on defendant than was imposed on him at the first trial, provided Judge Latham's sentence did not exceed thirty years, the maximum set forth for a violation of G.S. § 14-87.

Defendant having been convicted of the same offense on the second trial on the same indictment a heavier sentence may be imposed than was imposed on the first trial. State v. Williams, 261 N.C. 172, 134 S.E.2d 163; Hobbs v. State, 231 Md. 533, 191 A.2d 238, cert. den. 375 U.S. 914, 84 S. Ct. 212, 11 L.Ed.2d 153; Sanders v. State, 239 Miss. 874, 125 So.2d 923, 85 A.L.R.2d 481; Bohannon v. District of Columbia, Mun.Ct. of Appeals of the District of Columbia, D.C.Mun.App., 99 A.2d 647; 24 C.J.S. Criminal Law § 1426.

In Hobbs v. State, supra, a case directly in point, the Court of Appeals of Maryland correctly stated: 'In asking for and receiving a new trial, appellant must accept the hazards as well as the benefits resulting therefrom.'

In Bohannon v. District of Columbia, supra, a case directly in point, the Court accurately said: 'We readily appreciate appellant's feeling that the obtaining of a new trial after the first conviction was a hollow victory, since it resulted in a second conviction and a fine ten times as much as the one first imposed. This, however, was a risk he took and the second judge was not bound to impose the same fine given by the first judge.'

No transcript of the evidence in either trial is in the record. There is nothing in the record to suggest that Judge Latham imposed upon defendant a heavier sentence than he received at the first trial merely because he obtained a new trial. When defendant, at his request, obtained a new trial, hoping to be set free or obtain a lighter sentence, he accepted the hazard of receiving a heavier sentence, if convicted at the new trial of the same identical offense, and this is not a denial to him of any constitutional right as contended by him. Defendant's first assignment of error is without merit and is overruled.

Defendant's second and last assignment of error is that the trial court, in failing to give him credit for the time he had served under his first sentence, deprived him 'of his life, liberty and property in violation of due process of law and equal protection of the law as guaranteed to the defendant' by the Federal and State Constitutions. Defendant has favored us with no citation of authority to support his contention.

No statute of this State provides that when a defendant in a criminal case, at his request, obtains a new trial, and he is convicted again of the same offense, he shall be given credit for the time he has...

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23 cases
  • North Carolina v. Pearce Simpson v. Rice
    • United States
    • U.S. Supreme Court
    • June 23, 1969
    ...sentence where the defendant can show that it reflects an intent to punish him for seeking a new trial is one instance, State v. White, 262 N.C. 52, 136 S.E.2d 205 (1964). Of the States that prohibit increased sentencing upon retrial, some rest on state standards of double jeopardy, People ......
  • Patton v. State of North Carolina
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 14, 1967
    ...of that conviction — including the sentence imposed by the first judge and any time served under that sentence.4 In State v. White, 262 N.C. 52, 136 S.E.2d 205 (1964), the North Carolina Supreme Court stated that a "is not entitled as a matter of law to credit against the second sentence fo......
  • Patton v. State of North Carolina, Civ. No. 2397.
    • United States
    • U.S. District Court — Western District of North Carolina
    • July 20, 1966
    ...a new trial (Patton) must be deemed to have consented to a wiping out of all the consequences of the first trial." State v. White, 262 N.C. 52, 136 S.E.2d 205 at 208 (1964). (4) "(H)e is not entitled as a matter of law to credit against the second sentence for time served under the original......
  • State v. Stafford, 495
    • United States
    • North Carolina Supreme Court
    • December 9, 1968
    ...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 The total of the time served under the two sentences, however, ma......
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