State v. Williams, 29 N.C. App. 408 (1976)

May 5, 1976 · North Carolina Court of Appeals · No. 7527SC1059

29 N.C. App. 408

STATE OF NORTH CAROLINA v. LEWIS WILLIAMS

No. 7527SC1059

(Filed 5 May 1976)

Criminal Law §§ 22, 91— negotiated plea — refusal of court to accept — continuance as a matter of right

Defendant was entitled to a continuance as a matter of right following the court’s refusal to accept his negotiated plea and defendant’s withdrawal thereof. G.S. 15A-1024.

Appeal by defendant from Friday, Judge. Judgment entered 11 September 1975 in Superior Court, Gaston County. Heard in the Court of Appeals 7 April 1976.

Defendant was indicted and tried upon a bill of indictment charging forgery and uttering the forged check. When the case was called for trial [10 September 1975] a negotiated plea was tendered which the trial judge refused to accept, and the defendant’s plea was withdrawn. The case was called for trial again on the following day [11 September 1975] and defendant moved for a continuance. The motion was denied. Defendant entered a plea of not guilty and upon a verdict of guilty as charged he was given an active sentence. Defendant appealed to this Court.

Attorney General Edmisten, by Associate Attorney Henry H. Burgwyn, for the State.

Harris and Bumgardner, by Don H. Bumgardner, for defendant appellant.

ARNOLD, Judge.

Defendant maintains that when the trial judge rejected the plea arrangement it entitled defendant to a continuance until the next session of court. In view of G.S. 15A-1024 we must agree with this contention and award defendant a new trial.

Under G.S. 15A-1024, if the judge determines to impose a sentence other than that provided in the plea arrangement between the parties he must so inform the defendant, and further inform defendant that he may withdraw his plea. “Upon withdrawal, the defendant is entitled to a continuance until the next session of court.”

The official commentary to G.S. 15A-1023 provides: “Subsection (1) requires the judge in open court, ... , to tell the defendant whether he will abide by the recommendation as to the sentence. If the judge refuses to go along, the parties can either renegotiate or the defendant may withdraw his plea and secure a continuance as a matter of right. See § 15A-1024.” Defendant was entitled to a continuance as a matter of right following the court’s refusal to accept the negotiated plea and defendant’s withdrawal thereof.

New trial.

Judges Morris and Hedrick concur.