State v. Watson

204 S.E.2d 537 (1974)

21 N.C. App. 374

STATE of North Carolina v. Palmer WATSON.

No. 745SC264.

Court of Appeals of North Carolina.

May 1, 1974.

Certiorari Denied July 1, 1974.

*540 Atty. Gen. Robert Morgan by Associate Atty. Charles R. Hassell, Jr., Raleigh, for the State.

Parker, Rice & Myles by Jeffrey T. Myles, Wilmington, for defendant appellant.

Certiorari Denied by Supreme Court July 1, 1974.

CAMPBELL, Judge.

The defendant assigns as error the failure of the trial court to comply with G.S. § 7A-457. This statute in pertinent part reads as follows:

"(a) An indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel, if the court finds of record that at the time of waiver the indigent person acted with full awareness of his rights and of the consequences of the waiver. In making such a finding, the court shall consider, among other things, such matters as the person's age, education, familiarity with the English language, mental condition, and the complexity of the crime charged."

We think that in the instant case the waiver in writing and the certificate attached thereto entered by Judge Burnett in the district court was adequate and sufficient. In our opinion the statute does not require successive waivers in writing at every court level of the proceeding. The trial in the district court and the further trial of the case in the superior court on appeal together constituted one in-court proceeding. The waiver in writing once given was good and sufficient until the proceeding finally terminated, unless the defendant himself makes known to the court that he desires to withdraw the waiver and have counsel assigned to him. The burden of showing the change in the desire *541 of the defendant for counsel rests upon the defendant. In the instant case, the trial judge in the superior court again called the attention of defendant to the fact that he could have court-assigned counsel to represent him if he so desired. This was all that was required, and, in fact, more than was required, and we find this assignment of error without merit.

The defendant assigns as error the fact that he did not receive a speedy trial. The record reveals that the offense occurred on 29 February 1972, and warrants were issued on that day. The warrants, however, were not served until 15 June 1973, and the defendant was tried on 3 October 1973. We do not believe that the defendant has shown any prejudice in this regard, and we find this assignment of error without merit. Compare State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

The defendant assigns as error the fact that his wife was permitted to testify against him. It is to be noted that the wife only testified to those matters pertaining to the assault upon her by the defendant. This did not constitute error. State v. Robinson, 15 N.C.App. 362, 190 S.E.2d 270 (1972), cert. denied, 281 N.C. 762, 191 S.E.2d 363 (1972).

The defendant assigns as error the sentence in excess of 30 days in the case involving the assault on Annie Watson. The record discloses that the defendant was placed on trial for a simple assault and not an assault on a female by a male. The verdict of the jury was for a simple assault. We think this exception is well-taken, and that the sentence in excess of 30 days was erroneous. State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966).

This case will, therefore, be remanded for the entry of a proper judgment in this one case.

We have reviewed the other assignments of error brought forward by the defendant, and we do not find it necessary to discuss them seriatim. There was no prejudicial error in any of them.

Remanded for proper judgment in the case of Annie Watson, No. 72CR17200. In all other respects

No error.

MORRIS and VAUGHN, JJ., concur.