State v. Reynolds

201 S.E.2d 586 (1974)

20 N.C. App. 479

STATE of North Carolina v. Douglas REYNOLDS.

No. 736SC812.

Court of Appeals of North Carolina.

January 9, 1974.

*587 Atty. Gen. Robert Morgan, by Associate Atty. John R. Morgan, Raleigh, for the State.

Cherry, Cherry & Flythe, by Joseph J. Flythe and Ernest L. Evans, Ahoskie, for defendant appellant.

MORRIS, Judge.

The defendant assigns error to the following portion of the court's instruction to the jury:

"Now in this case you may consider one of two verdicts, guilty of possession of non-tax-paid liquor and guilty of selling it, or not guilty."

It is his contention that this charge did not give the jury the alternative of finding him guilty of either possession or sale of the whiskey.

In this case, the warrant charged that defendant had "in his possession non-tax-paid whiskey and for the purpose of sale and did sell same to State ABC Officer John Roberson (undercover) to wit: (1) one pint." The warrant is clearly written as one count. Defendant cannot contend he was prejudiced by the court's charge. The charge was correct and in accord with the warrant. As drawn, the warrant placed a greater burden on the State to prove defendant's guilt. The State, under the charge was required to prove both possession and sale beyond a reasonable doubt before defendant could be found guilty. The trial judge so charged.

Defendant next assigns error to the court's inquiring of defendant prior to sentencing whether he intended to appeal. The court informed the defendant that he would suspend his sentence unless he decided to appeal his conviction, in which case he intended to give him an active sentence. It is well established that it is error for the trial court to change a suspended sentence to an active sentence upon learning of defendant's intention to appeal. In re Moses, 17 N.C.App. 104, 193 S.E.2d 375 (1972); State v. May, 8 N.C.App. 423, 174 S.E.2d 633 (1970).

We are of the opinion that the rule is equally applicable here. The threat of an active prison sentence if he appealed as opposed to a probationary type sentence if he did not, in our opinion, effectively denied to defendant an unlimited right of appeal. The sentence imposed must, therefore, be stricken and the case remanded for resentencing.

Remanded.

CAMPBELL and BRITT, JJ., concur.