State v. Grant

135 S.E.2d 666 (1964)

261 N.C. 652

STATE v. Kenneth GRANT.

No. 292.

Supreme Court of North Carolina.

April 15, 1964.

*667 T. W. Bruton, Atty. Gen., Theodore C. Brown, Jr., Staff Atty., Raleigh, for the State.

Turner & Harrison, Kinston, for petitioner.

PER CURIAM.

The question presented by the writ is one of law. A sentence of seven to nine years upon a bill of indictment for an attempt to break and enter is not authorized. The crime charged is a misdemeanor. The maximum punishment for the offense is imprisonment for two years. The commitment issued by the Assistant Clerk of the Greene County Superior Court states, "The commitment was for breaking and entering." The commitment must give way to the basic documentthe indictment which charges only an attempt to break and enter.

Ordinarily, when a judgment is imposed in excess of that permitted by law, the cause is remanded for a proper judgment. In this case the maximum sentence allowed has already been served. To send the case back for entry of a proper judgment would serve no useful purpose. The judgment in case No. 1377 entered in Greene County should be corrected by striking the term of imprisonment, "seven to nine years," and substituting, "two years."

The consecutive sentences subsequently imposed will fall into place on the basis of this correction. The cause is remanded to the Superior Court of Greene County for the correction of its record as here indicated. Certificate of the correction will be sent to the Prison Department.

Remanded.