State v. Absher

Annotate this Case

436 S.E.2d 365 (1993)

335 N.C. 155

STATE of North Carolina v. Phillip Lee ABSHER.

No. 13PA93.

Supreme Court of North Carolina.

November 5, 1993.

*366 Michael F. Easley, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., Raleigh, for the State, appellant.

Larry S. Moore, John E. Hall, Max F. Ferree, and William C. Gray, Jr., Wilkesboro, for defendant-appellee.

WEBB, Justice.

The defendant argues that it was the duty of the State to move for the imposition of a sentence within thirty days from the time the prayer for judgment was continued and when it failed to do so, the court lost its jurisdiction to impose a sentence. We hold there is no such requirement.

When the defendant entered the guilty plea, the court had the power to continue the prayer for judgment to a later term. State v. Graham, 225 N.C. 217, 34 S.E.2d 146 (1945); N.C.G.S. ยง 15A-1334(a) (1988). The prayer for judgment was in effect continued from term to term when a sentence was not imposed. As long as a prayer for judgment is not continued for an unreasonable period, as it was not in this case, and the defendant was not prejudiced, as he was not in this case, the court does not lose the jurisdiction to impose a sentence. In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979); State v. Griffin, 246 N.C. 680, 100 S.E.2d 49 (1957).

The defendant relies on State v. Gooding, 194 N.C. 271, 139 S.E. 436 (1927). In Gooding, the superior court imposed a sentence requiring the defendant to pay a fine of $150.00, and the cost, with which the defendant complied. The court also continued the prayer for judgment for one year upon condition that the defendant be of good behavior. Eighteen months later, the court imposed a sentence of one year for violation of the condition upon which the prayer for judgment was continued. We reversed, saying a sentence could not be imposed more than one year after the prayer for judgment was imposed.

Gooding does not control this case. In this state, we have made a distinction between cases in which prayer for judgment is continued with conditions imposed and cases in which prayer for judgment is continued without any conditions. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962). In Gooding, a condition was imposed on the prayer for judgment, and the defendant was required to pay a fine of $150.00 and to pay the costs. In this case, no conditions were imposed. In Gooding, the court could not impose a sentence on defendant at one term and continue prayer for judgment and impose another sentence at a subsequent term. In this case, only one sentence was imposed. That is the distinction between this case and Gooding. To the extent the language of Gooding is inconsistent with the language of this case, Gooding is overruled.

Our decision in this case is consistent with State v. Degree, 110 N.C.App. 638, 430 S.E.2d 491 (1993).

For the reasons stated in this opinion, we reverse the Court of Appeals and remand to the Court of Appeals for remand to superior court for reinstatement of the sentence.

REVERSED AND REMANDED.