State v. Kelly

Annotate this Case

167 S.E.2d 881 (1969)

5 N.C. App. 209

STATE of North Carolina v. Paul David KELLY.

No. 6927SC227.

Court of Appeals of North Carolina.

June 18, 1969.

*882 Atty. Gen. Robert Morgan by Staff Atty. Dale Shepherd, Raleigh, for the State.

Robert H. Forbes, Gastonia, for defendant appellee.

MORRIS, Judge.

This case presents for determination the question of whether a superior court judge may order that credit be given on a valid sentence, previously imposed in another county and by another judge, for time which a party has served on a separate invalid sentence? We think the answer is "no".

At the outset, we note that we are not dealing with a case in which the party has been tried, sentenced, and served part of the sentence and then obtained a new trial on the same charge. If this were the situation, it is clear that the defendant would be entitled to credit for time served under the previous sentence. State v. Stafford, 274 N.C. 519, 164 S.E.2d 371; and cases there cited.

We think the answer to the problem presented here may be derived by drawing an analogy to the situation in which a judge imposes a sentence, and then after term attempts to change this sentence in some manner. This may not be done, for it is stated in State v. Gross, 230 N.C. 734, 55 S.E.2d 517:

"As the term of court had not expired the whole matter was in fieri and the right of the judge to modify, change, alter or amend the prior judgment, or to substitute another judgment for it, cannot be questioned. State v. Godwin, 210 N.C. 447, 449, 187 S.E. 560; State v. McLamb, 203 N.C. 442, 166 S.E. 507; State v. Manley, 95 N.C. 661; State v. Stevens, 146 N.C. 679, 61 S.E. 629; State v. Whitt, 117 N.C. 804, 23 S.E. 452." (Emphasis added.)

Our interpretation of the North Carolina cases applied to this situation would logically result in holding that after the June 1968 Session of Superior Court of Martin County had ended, Judge Cohoon, the presiding judge, did not have the authority to modify the sentence imposed upon the defendant at that term. Obviously, if Judge Cohoon did not have the authority to alter the sentence after term, we cannot perceive of Judge Grist having the authority to alter the sentence at a session of court held in Gaston County three months after the Martin County session of court had ended.

While the judgment of Judge Cohoon was not before Judge Grist for attack or upon an allegation that it was erroneous, the practical effect of Judge Grist's order was to change the judgment entered by Judge Cohoon. A cardinal principle of law in this State has always been that a decision of one judge of the superior court is not reviewable by another judge of the superior court. "The power of one judge of the Superior Court is equal to and co-ordinate *883 with that of another. A judge holding succeeding terms of a superior court has no power to review a judgment rendered at a former term upon the ground that such judgment is erroneous. Phillips v. Ray, 190 N.C. 152, 129 S.E. 177." Newton and Co. v. Wilson Furniture Manufacturing Co., 206 N.C. 533, 536, 174 S.E. 449, 451.

For the reasons stated herein, the order entered by Judge Grist on 12 September 1968 must be vacated.

Error.

CAMPBELL and BROCK, JJ., concur.