State v. Crabtree

312 S.E.2d 219 (1984)

STATE of North Carolina v. Ormand Barry CRABTREE.

No. 8327SC474.

Court of Appeals of North Carolina.

February 21, 1984.

*220 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for the State.

Triggs & Clontz by C. Gary Triggs, Morganton, for defendant-appellant.

EAGLES, Judge.

Defendant assigns as error the trial judge's entry of the 8 December 1982 order recommitting defendant to the Department of Correction. We agree.

At issue here is the interpretation of G.S. 90-95(h) which was enacted by the General Assembly in two different versions. 1979 Session Laws (2nd Session), ch. 1251, s. 6 (first version) and 1979 S.L. (2nd Session), ch. 1251, s. 7; 1981 S.L., ch. 63, s. 1(e); 1981 S.L., ch. 179, s. 14 (second version). Missing from the second version is subdivision (h)(5) of the first version of G.S. 90-95.

Defendant pled guilty to a violation of G.S. 90-95(h)(1)(b) that occurred on 14 November 1980. The first version of G.S. 90-95(h) applies to this offense since it was committed after 1 July 1980 and before 1 July 1981. Subdivisions (h)(5) and (h)(6) of the first version provide that:

(5) Notwithstanding any other provisions of law, except as provided in G.S. 90-95(h)(6), any person who has been convicted of a violation of this subsection shall serve the applicable minimum prison term provided by this subsection before either unconditional release or parole. (6) A person sentenced under this subsection is not eligible for early release or early parole if the person is sentenced as a committed youthful offender and the sentencing judge may not suspend the sentence or place the person sentenced on probation. However, the sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered such substantial assistance.

G.S. 90-95(h)(1)(b) mandates that defendant's sentence be "not less than three years," but the trial judge may reduce a defendant's sentence to a lesser amount upon a finding that defendant rendered substantial assistance as provided in G.S. *221 90-95(h)(6). In the case sub judice, the trial court sentenced defendant to a lesser term of 23 months based on his "substantial assistance" as contemplated by subsection (h)(6).

The issue here is whether the language of subdivision (h)(5) of G.S. 90-95 (first version), "except as provided in G.S. 90-95(h)(6)," exempts a defendant sentenced to a lesser prison term pursuant to G.S. 90-95(h)(6) from the requirement that he "serve the applicable minimum prison term ... before either unconditional release or parole." We hold that it does. We hold that defendant was entitled to receive credit for good time or gain time under the appropriate regulations of the Department of Correction. Here, because of time credited against his sentence by the Department of Correction, defendant was not required to serve the sentence of 23 months on a day for day basis. The Department of Correction properly released defendant, and Judge Burroughs erred in ordering him recommitted.

We note that the second version of G.S. 90-95, applicable to offenses committed on or after 1 July 1981, does not contain subsection (h)(5) as it appears in the first version.

Since we reverse the order to recommit defendant, we do not address defendant's argument that Judge Burroughs did not have the authority to review the propriety of the unconditional release of defendant by the Department of Correction. We note, however, that at least one jurisdiction has dealt with the issue of improper early release of a prisoner who had not fully served a minimum sentence through a contempt proceeding against a superintendent of prisons. State ex rel. Murphy v. Superior Court of Maricopa County, 30 Ariz. 332, 246 P. 1033 (1926).

Defendant also assigns as error the trial judge's failure to require the State to offer some evidence to justify the restrictions placed on defendant while he was on release pending appeal. We find no error. G.S. 15A-536 provides that the trial court may release a defendant, pending appeal, and may impose restrictions on the defendant. The terms of the release are within the discretion of the court, State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979), and we find here no abuse of discretion.

Defendant also contends that the trial judge erred in failing to conduct a hearing on defendant's motion to recuse. G.S. 15A-1223(b) provides that a judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal proceeding if he is, for any reason, unable to perform the duties required of him in an impartial manner. A trial judge must refer a motion to recuse to another judge "for consideration and disposition when `a reasonable man knowing all the circumstances would have doubts about the judge's ability to rule on the motion to recuse in an impartial manner.'" State v. Hill, 45 N.C.App. 136, 141, 263 S.E.2d 14 (1980) (quoting McClendon v. Clinard, 38 N.C.App. 353, 356, 247 S.E.2d 783, 785 (1978)). Here, there are no facts to cause a reasonable man knowing all the circumstances to doubt the judge's ability to rule on the motion to recuse in an impartial manner. Accordingly there was no error in the trial judge's failure to schedule a hearing on defendant's motion to recuse.

Order committing defendant to the custody of the Department of Correction is

Reversed.

HEDRICK and BRASWELL, JJ., concur.