State v. Tolley

156 S.E.2d 858 (1967)

271 N.C. 459

STATE of North Carolina v. Shelby Eugene TOLLEY.

No. 95.

Supreme Court of North Carolina.

September 27, 1967.

*860 Atty. Gen. T. W. Bruton and Staff Atty. Ralph A. White, Jr., Raleigh, for the State.

Shelby Eugene Tolley, in pro. per.

PER CURIAM.

If the superior court judgment were valid in all other respects, the fact that it imposes a punishment greater than that imposed in the Police Court of Asheville does not afford any basis for the relief sought by petitioner. Upon petitioner's appeal from the judgments pronounced in the Police Court of Asheville, the cases were for trial de novo in the superior court. Private Laws of 1905, Chapter 35, Section 6. However, the superior court judgment is invalid for the reasons stated below.

Every person convicted of speeding in violation of G.S. § 20-141, where the speed is not in excess of eighty miles per hour, "shall be punished by a fine of not more than one hundred dollars ($100.00) or by imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment". G.S. § 20-180; G.S. § 20-176(b).

"Any person convicted of reckless driving shall be punished by imprisonment not to exceed six months or by a fine, not to exceed five hundred dollars ($500.00) or by both such imprisonment and fine, in the discretion of the court." G.S. § 20-140(c).

We pass, without discussion, whether the count with reference to "improper license tag" is sufficient to charge a criminal offense. Assuming it does, it is unclear whether it purports to charge a violation of G.S. § 20-63 or a violation of G.S. § 20-111. In either event, the maximum punishment for such violation would be that prescribed by G.S. § 20-176(b), namely, "a fine of not more than one hundred dollars ($100.00) or * * * imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment."

Under G.S. § 20-7(n), any person convicted of operating a motor vehicle over any highway in this State, without having first been licensed as such operator, in violation of G.S. § 20-7(a) "shall be guilty of a misdemeanor and punished in the discretion of the court". However, G.S. § 20-35 (b) provides: "Unless another penalty is in this article or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any provision of this article shall be punished by a fine of not more than five hundred ($500.00) dollars or by imprisonment for not more than six (6) months." G.S. § 20-7 and G.S. § 20-35 are provisions of Article 2 of Chapter 20 of the General Statutes. These statutory provisions, being in pari materia, must be construed together; and, if possible, they must be reconciled and harmonized. When so construed, we are of opinion, and so decide, that the explicit provisions of G.S. § 20-35 establish the maximum limits of the court's discretionary power in respect of punishment for a violation of G.S. § 20-7 (a). Decisions which, in Chief Justice Stacy's phrase, are "obliquely relevant" include State v. Blackmon, 260 N.C. 352, 132 S.E.2d 880; State v. Adams, 266 N.C. 406, 146 S.E.2d 505; State v. Thompson, 268 N.C. 447, 150 S.E.2d 781.

The cases having been consolidated for judgment, the court had no authority "to enter a judgment in gross in excess of the greatest statutory penalty applicable to any of the counts upon which there has been a conviction or plea of guilty." State v. Austin, 241 N.C. 548, 85 S.E.2d 924. Here, no count to which defendant pleaded guilty charged a criminal offense punishable by imprisonment for a term in excess of six months. Hence, the judgment *861 of the superior court is invalid and is vacated.

"It is the general rule in this jurisdiction that where a defendant has been properly convicted but given a sentence in excess of that authorized by law, and comes to this Court pursuant to a petition for writ of certiorari in a habeas corpus proceeding, when such defendant has not served as long under the sentence as he might have been legally imprisoned, we vacate the improper judgment and remand for proper sentence. In such case, the defendant should be given credit for the time served under the vacated judgment." State v. Austin, supra; State v. Thompson, supra.

Defendant having served more than six months under said superior court judgment, and all beyond six months of the sentence being excessive, he is entitled to be discharged. It is so ordered. Therefore, let this opinion be certified immediately to the Commissioner of Corrections and also to the Superior Court of Buncombe County to the end that petitioner be discharged from custody forthwith.

Judgment vacated.