State v. Cook, 22 N.C. App. 353 (1974)

July 3, 1974 · North Carolina Court of Appeals · No. 7427SC426

22 N.C. App. 353

STATE OF NORTH CAROLINA v. FRANK SAMUEL COOK

No. 7427SC426

(Filed 3 July 1974)

Criminal Law §§ 142, 148 — prayer for judgment continued — no appeal

Prayer for judgment may be continued from session to session without defendant’s consent if no conditions are imposed, and when prayer for judgment is continued there is no judgment and no appeal will lie.

Appeal by defendant from Snepp, Judge, 7 January 1974 Regular Criminal Session of Superior Court held in Lincoln County.

By separate warrants issued from district court on 12 November 1973, defendant was charged with operating a motor vehicle on a public highway in North Carolina (1) while under the influence of intoxicants, seventh offense, (2) while his operator’s license was permanently revoked, and (3) with an expired license plate. In district court, he was found guilty of all charges and appealed to superior court.

In superior court, on pleas of not guilty, defendant was found guilty of (1) driving under the influence of intoxicants, third offense, (2) driving after his license had been permanently revoked, and (3) driving with expired license plate. From judgments imposing prison sentences, he appealed.

Attorney General Robert Morgan, by Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Guy A. Hamlin, for the State.

Wilson & Lafferty, P.A., by John O. Lafferty, Jr., for defendant appellant.

BRITT, Judge.

Defendant’s sole assignment of error is that the court erred in entering the judgments. This assignment presents the case for review for error appearing on the face of the record. 3 Strong N. C. Index 2d, Criminal Law, § 161, page 112.

With respect to the charges of driving under the influence and driving after permanent revocation of operator’s license, the record proper discloses no error. Therefore, the verdicts and judgments as to those charges are not disturbed.

With respect to the charge of driving with an expired license plate, the record reveals that in district court prayer for judgment was continued for twelve months. That case was not appealable from the district court to the superior court, nor from the superior court to this court.

It is well settled in this State that prayer for judgment may be continued from session to session without defendant’s consent if no conditions are imposed; that when prayer for judgment is continued, there is no judgment and no appeal will lie. State v. Pledger, 257 N.C. 634, 127 S.E. 2d 337 (1962) ; Barbour v. Scheidt, Comr. of Motor Vehicles, 246 N.C. 169, 97 S.E. 2d 855 (1957).

For the reasons stated, as to the charge of driving with expired license plate, the verdict returned and judgment entered in the superior court are vacated, and the case is remanded to the superior court with directions to remand the case to the district court.

In cases numbered 73CR6621 and 73CR6624, no error.

In case no. 73CR6625, judgment vacated and cause remanded.

Chief Judge Brock and Judge Baley concur.