State v. Bryant, 23 N.C. App. 373 (1974)

Oct. 16, 1974 · North Carolina Court of Appeals · No. 747SC759

23 N.C. App. 373

STATE OF NORTH CAROLINA v. PERCY BRYANT

No. 747SC759

(Filed 16 October 1974)

Criminal Law § 146— prayer for judgment continued — no appeal

A prayer for judgment continued is not a final judgment and is therefore not appealable.

On certiorari to review judgment of Lanier, Judge, entered at the 28 November 1973 Session of Superior Court held in Wilson County. Certiorari was allowed on 16 May 1974 and the case was argued in the Court of Appeals on 18 September 1974.

Defendant was charged in a two-count bill of indictment with (1) felonious breaking and entering and (2) felonious larceny. The jury returned a verdict of guilty as charged. The court entered judgment imposing a prison sentence on the felonious breaking and entering charge but continued prayer for judgment on the felonious larceny charge. Defendant appealed.

Attorney General James H. Carson, Jr., by Assistant Attorney General Charles A. Lloyd, for the State.

Bobby G. Abrams for the defendant appellant.

BRITT, Judge.

The assignment of error that defendant stresses is that the trial judge failed to charge the jury as to misdemeanor larceny, a lesser included offense of felonious larceny. The assignment has no merit.

It is well established that a “prayer for judgment continued” is not a final judgment, therefore, it is not appealable. See State v. Griffin, 246 N.C. 680, 100 S.E. 2d 49 (1957) ; State v. Pledger, 257 N.C. 634, 127 S.E. 2d 337 (1962). Since prayer for judgment was continued on the felonious larceny charge, a final judgment was not entered on that charge and any error committed with respect thereto is not reviewable at this time.

As to the other assignments of error, we have reviewed the records and briefs and find that they too are without merit.

No error.

Judges Hedrick and Baley concur.