State v. Stephenson, 247 N.C. 231 (1957)

Nov. 20, 1957 · Supreme Court of North Carolina
247 N.C. 231
STATE v. DAVID STEPHENSON

STATE v. DAVID STEPHENSON

(Filed 20 November, 1957)

Criminal Law § 127—

Upon plea of guilty to a charge of public drunkenness, G.S. 14-335, sentence of defendant “to the roads for a term of 30 days” is not in compliance with G.S. 148-30 or G.S. 148-32, and upon appeal the judgment must be vacated and the cause remanded for a new and proper judgment.

Appeal by defendant from Fountain, Special Judge, August Term, 1957, of Harnett.

On defendant’s appeal from judgment of Recorder’s Court of Dunn, this case came on for trial in superior court on the original warrant which charged, inter alia, that defendant on or about July 1, 1956, did unlawfully and wilfully “engage in public drunkness and disorderly conduct at a public place in town of Dunn to wit: the bus station,” etc.

*232As to what occurred in the superior court, the record shows the following, nothing more:

“Defendant plead guilty to public drunkenness, whereupon the defendant was sentenced to the roads for a term of 30 days. Defendant in open court gives notice of appeal to the Supreme Court of North Carolina . . .”

Defendant’s sole assignment of error is that said judgment is “incomplete, illegal and void.”

Attorney General Patton and Assistant Attorney General Bru-ton for the State.

E. R. Temple for defendant appellant.

Per Curiam.

Upon his plea of guilty to the charge of public drunkenness, defendant was subject to punishment as provided by G.S. 14-335. In such case, where the judgment is one of imprisonment, the sentence imposed should be as provided by G.S. 148-30 or by G.S. 148-32. Also, see G.S. 15-6.

The sentence imposed by the judgment as appears in the record was not in compliance with G.S. 148-30 or with G.S. 148-32. Hence, since defendant’s appeal constitutes an exception thereto, the judgment is vacated; and the cause is remanded for a new and proper judgment upon defendant’s plea of guilty to the charge of public drunkenness.

We are not unmindful that the judgment as recorded may reflect the interpretation placed thereon by the clerk who prepared the minutes rather than the judgment as pronounced by the presiding judge.

Remanded for proper judgment.