Matter of Tuttle

243 S.E.2d 434 (1978)

In the Matter of the Imprisonment of Ricky Ray TUTTLE.

No. 7710SC963.

Court of Appeals of North Carolina.

May 2, 1978.

*435 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ben G. Irons, II, Raleigh, for the State.

A. L. Sherk, Winston-Salem, for respondent Tuttle.

PARKER, Judge.

Article 3A of G.S. Ch. 148 was repealed and replaced by Article 3B effective 1 October 1977. In this opinion reference will be *436 made to the statute which was in effect at the time the judgment of imprisonment here under attack was imposed.

By definition in G.S. 148-49.2, a "youthful offender" was a person under the age of 21 at the time of conviction, and a "committed youthful offender" was one committed to the custody of the Secretary of Correction under provisions of Art. 3A of G.S. Ch. 148. Sentencing of a youthful offender was controlled by G.S. 148-49.4, which provided that "[i]f the court shall find that the youthful offender will not derive benefit from treatment and supervision pursuant to this Article, then the court may sentence the youthful offender under any other applicable penalty provision." Interpreting this language, we held in State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975), that the trial judge could not sentence a youthful offender as an older criminal without expressly finding he would receive no benefit from treatment and supervision as a "committed youthful offender," although such finding need not be accompanied by supporting reasons. This interpretation was followed in State v. Jones, 26 N.C.App. 63, 214 S.E.2d 779 (1975), State v. Worthington, 27 N.C.App. 167, 218 S.E.2d 233 (1975), and State v. Matre, 32 N.C.App. 309, 231 S.E.2d 688 (1977).

In the present case, Judge Albright, in imposing the sentence of imprisonment on 18 March 1975 (just one month after our decision in State v. Mitchell, supra), did expressly make the requisite "no benefit" finding. The only question is whether the finding came too late. We hold that it did not, and accordingly we reverse Judge Smith's order vacating the sentence imposed.

It has long been settled law in this State that "until the expiration of the term the orders and judgments of the court are in fieri, and the judge has the power, in his discretion, to make such changes and modifications in them as he may deem wise and appropriate for the administration of justice." State v. Hill, 294 N.C. 320, 329, 240 S.E.2d 794, 801 (1978); accord, State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936). This is true notwithstanding notice of appeal has been given. State v. Belk, 272 N.C. 517, 158 S.E.2d 335 (1968). In the present case the sentencing judge made the "no benefit" finding on the same day and virtually at the same time that judgment and notice of appeal were entered. The term of court had not expired, the judgment remained in fieri despite the notice of appeal, and the "no benefit" finding was effectual.

Respondent's contention that G.S. 148-49.4 must be construed to mean that unless the sentencing judge first expressly made the "no benefit" finding he lacked all power to sentence the youthful offender under any other applicable penalty provision exalts form over substance. All that G.S. 148-49.4 required was that the sentencing judge make the "no benefit" finding at a time when he still retained control of the sentencing process. This was done by Judge Albright in the present case. Judge Smith's order vacating the judgment entered by Judge Albright on 18 March 1975 and returning respondent Tuttle to the Superior Court in Forsyth County for resentencing is

Reversed.

VAUGHN and WEBB, JJ., concur.