State v. Payne

138 S.E.2d 765 (1964)

263 N.C. 77

STATE v. Clarke Eugene PAYNE. STATE v. Willard Ray MARTIN, Jr.

Nos. 511 and 515.

Supreme Court of North Carolina.

November 25, 1964.

*766 T. W. Bruton, Atty. Gen., and Theodore C. Brown, Asst. Atty. Gen., for the State.

Graham M. Carlton, Salisbury, for defendant appellants.

HIGGINS, Justice.

In the trial, neither defendant was represented by counsel. The court made inquiry and ascertained the defendant Payne was not indigent and that the defendant Martin, though a minor, had access to guardian funds and hence was not indigent. The court refused to appoint counsel. Upon arraignment, each defendant was called by the solicitor to his table and each thereafter tendered a plea of nolo contendere which the solicitor accepted. The record fails to disclose any explanation as to the meaning of the plea or the possible consequences which the plea involved.

The defendants being without counsel, G.S. § 15-4.1 required the court to "inform the accused of the nature of the charge and the possible consequences of his plea, and as a condition of accepting the plea of guilty the Judge shall examine the defendant and shall ascertain that the plea was freely, understandably and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency * * *." Ch. 1080, § 1, Session Laws 1963.

A plea of nolo contendere, although not strictly a confession of guilt, nevertheless will support the same punishment as a plea of guilty. The rule of strict construction in favor of an accused, therefore, requires that a plea of nolo contendere be treated as a plea of guilty in so far as the right to be examined by the judge and to be informed as to the consequences of such plea.

The Attorney General's brief closes with this paragraph:

"The record does not reflect an examination by the Court of the defendant as to whether he knew or understood what his plea of `nolo contendere' meant, nor whether he knew or understood what jail term or fine could be imposed as a result of his plea."

On account of the court's failure to warn and advise the defendants of the consequences *767 of their pleas, the same are set aside and the judgments thereon are vacated. The cases will be remanded to the Superior Court of Rowan County for a

New trial.