State v. Walker

172 S.E.2d 881 (1970)

7 N.C. App. 548

STATE of North Carolina v. William Alexander WALKER.

No. 7014SC49.

Court of Appeals of North Carolina.

April 1, 1970.

Certiorari Allowed May 12, 1970.

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

John C. Randall, Durham, for defendant.

*882 BROCK, Judge.

The Solicitor has stipulated with defendant as follows:

"1. That the Defendant-Appellant in this case was in custody from May 7, 1968 until June 13, 1968 in lieu of bond. "2. That the Defendant-Appellant in this case was in custody from June 14, 1968 until August 14, 1968 under an order for mental and psychiatric observation. "3. That the Defendant-Appellant in this case was in custody from November 20, 1968, the date of his first trial, until February 4, 1969, in lieu of bond pending his appeal."

Defendant argues and contends, therefore, that he is entitled to have his sentence credited with a total of 174 days represented by the time he has spent in custody in this prosecution.

The time spent in custody, as represented by stipulations 1 and 2, involve time in custody before defendant's first trial; that is, time spent in custody awaiting trial. It seems that the opinion in State v. Virgil, 276 N.C. 217, 172 S.E.2d 28, filed 30 January 1970, clearly disposes of defendant's contention. In Virgil Justice Huskins discussed State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, and thereafter held: "Thus North Carolina requires that credit be given for time served under a previous sentence for the same conduct but holds that a defendant is not entitled to credit for time spent in custody while awaiting trial."

Defendant argues that nevertheless he is entitled to credit for the time spent in custody, without privilege of bond, during his sixty day commitment to Cherry Hospital for mental evaluation. We perceive no reason why defendant is entitled to credit for time under such commitment any more than a defendant confined, without privilege of bond, on a capital felony charge; such was the situation in Virgil. Defendant has cited to us the case of Cephus v. United States decided in 1967 by the U. S. Court of Appeals for the District of Columbia (128 U.S.App.D.C. 366, 389 F.2d 317), as supporting his contention that he is entitled to credit for time spent under commitment for mental evaluation. If it should be conceded that the federal court grounded its order on what it conceived to be a constitutional requirement, nevertheless we adhere to the reasoning and holding of the Supreme Court of North Carolina.

Defendant's contention with respect to the time spent in custody pending the appeal of his first conviction, as reflected by the third stipulation set out above, is likewise disposed of by the holding in Virgil, supra. Defendant was in custody from 20 November 1968, the date of his first conviction, until 4 February 1969, at which time he was able to post the required appearance bond. The only statutory requirement in North Carolina that a defendant be given credit for time spent in custody pending appeal was first ratified 22 April 1969. Chap. 266, Session Laws 1969. None of the time in custody claimed by defendant occurred after 4 February 1969. "Recent enactments designed to require credit on a prison sentence for all time spent in custody pending appeal are not retroactive * * *." State v. Virgil, supra.

For the reasons stated it was not error for the trial judge to refuse to give defendant credit on the sentence.

However, we note that the judgment entered upon defendant's second trial recites that "* * * defendant, through his attorney and in his own proper person, tenders a plea of Nolo Contendere as charged * * *." This obviously was an oversight on the part of the trial judge, because the only record charge against defendant was by indictment charging him with the felony of assault with intent to commit rape. This Court, by its opinion upon defendant's first appeal, effectively directed a nonsuit *883 of the felony as charged in the bill of indictment, and directed that defendant could only be tried upon the lesser included misdemeanor offense. Also, the sentence imposed by the trial judge reflects that he was considering only the lesser included misdemeanor offense. Nevertheless, in order that the judgment entered may recite the correct charge to which the plea was entered, this cause is remanded to the Superior Court of Durham County with instructions that the judgment entered in this case on 2 September 1969 be amended to show that the defendant tendered a plea of nolo contendere to a charge of assault on a female, he being a male person. (G.S. § 14-33(b) (4)).

Remanded for correction of recitations in the judgment.

No Error in the judgment imposing sentence.

BRITT and GRAHAM, JJ., concur.