In this disсiplinary action respondent admits he entered a plea of nolo contendere in the Federal District Court to the charge of receiving and possessing chattels valued at less than $100 knowing thеm to have been stolen or embezzled (a violation of Title 18, U.S.C., § 659), but denies he committed the offense charged. The question presented is whether respondent’s plea of nolo contendere еntitles the State Bar to summary judgment authorizing disciplinary action against respondent. The answer is found in our decisions defining the legal effect of a plea of nolo contendere. Its consequenсes, long established in this State, are clearly articulated in the cases cited below and in many others.
By the plea of nolo contendere a defendant says only that he does not wish to contend with the State in respect to the charge.
State v. Norman,
“. . . Both the court and the prosecuting attorney may well decline tо accept such plea in cases where the due administration of justice might be improperly affected, for when the plea is accepted it is accepted with all the implicatiоns and reservations which under the law and accurate pleading appertain to that plea.”
Winesett v. Scheldt, Comr. of Motor Vehicles,
*542
“The basic characteristic of the plea of
nolo contendere
which differentiates it from a guilty plea, as unanimously accepted by all the courts, is that while the рlea of
nolo contendere
may be followed by a sentence, it does not establish the fact of guilt for any other purpose than of the case to which it applies.”
Fox v. Scheldt, Comr. of Motor Vehicles,
Following acceptance of the plea nothing more remains for the court to do except pronounce judgment. “When a plea of
nolo contendere
has been acсepted by the Court, and as long as it stands, it is not within the province of the Court to adjudge the defendant guilty or not guilty. . . . The judge can hear evidence. only to aid him in fixing punishment.”
State v. Barbour,
The principles enunciated in the decisions noted above were applied in
In re Stiers,
In its opinion the Court of Appeals attempted to take this case out of “the general rule” enunciated in
In re Stiers
and the other cases cited above on the ground that respondent Hall not only entered a plea of nolo contendere but the District Court judge, prior to imposing judgmеnt upon the plea, “adjudged that the defendant is guilty as charged and convicted.” The Court of Appeals based its decision that the State Bar is entitled to summary judgment on the premise that the general rulе “simply should have no application where a judgment of conviction is entered on the plea.”
State Bar v. Hall,
In our view the Court of Appeals misconstrued the effect of the District Court’s judgment. Our research disclоses no difference in the consequences of a plea of nolo contendere in this jurisdiction and the federal courts. On the contrary, it leads us to the conclusion that Justice Parker (later Chief Justice) was correct when he said, “It seems to be the law in all the State Courts and in the Federal Courts that a plea of
nolo contendere
to an indictment good in form and substance, has all the effect of a plea of guilty for the purposes of that case only.”
Fox v. Scheldt, Comr. of Motor Vehicles,
supra at 35,
In
United States v. Reisfeld,
In allowing the motion Chief Judge Thomsen held that a judgment based on a plea of nolo contendere “need not and should not state: ‘It is adjudged that the defendant is guilty as charged and convicted.’ ” Judges Chestnut and Watkins concurred in
*544
Judge Thomsen’s opinion, wherein he said: “It is not necessary that the court adjudgе the party guilty; indeed, it has been held that such a provision in a judgment is not even proper.
See
In footnote 8 to its opinion in
North Carolina v. Alford,
“Throughout its history . . . the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea ‘unless it is satisfied that there is a factual basis for the plea’; there is no similar requirement for рleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.” See
United States v. Prince,
In
United States v. Safeway Stores, supra,
after noting that Cоunsel for the Government had described the plea of nolo con-tendere as “a plea of guilty in Latin,” Judge Estes quoted with approval the following comment of the Committee which drafted the Federal Criminal Rules: “While at times criticized as theoretically lacking in logical, basis, experience has been that [the plea of nolo contendere] performs a useful function from a practical standpoint.”
Although not a basis for decision, in its opinion, the Court of Appeals — citing authorities from several other jurisdictions — recorded its view that “an exception to the general rule in this
*545
and оther jurisdictions that a plea of nolo contendere cannot be used against a defendant in any proceeding other than the case in which it was entered should be made in the case of disciplinary proceedings against licensed attorneys.”
With reference to the foregoing comment of the Court of Appeals we reiterate the statement of Chief Justice Devin in
Winesett v. Scheldt, Comr. of Motor Vehicles,
supra at 194-195,
The statute under which State Bar instituted this proceeding, G.S. 84-28(2)(a) (1975), makes “Commission of a criminal offense showing professional unfitness” one of the groimds for disciplinary action against an attorney. As rewritten by 1975 N.C. Sess. Laws, ch. 582, § 5 (effective 1 July 1975 and codified as G.S. 84-28(b)(l) (Cum. Supp. 1975)), the corresponding ground is “Conviction of a criminal offense showing professional unfitness.” (Italics ours.) Presumably the General Assembly understood the legal effect of a plea of nolo contendere to a criminal offense involving moral turpitude and constituting conduct showing professional unfitness. We note the omission from the statute of such a plea as a ground for disciplinary action against an attorney.
We have no doubt that respondent’s plea of nolo contendere was entered and accepted in reliance upon “all the implications and reservations which under the law . . . apрertain to that plea.” Fundamental fairness would preclude making an ex post facto exception to the long established rule that the plea of nolo con-tendere has no effeсt beyond the particular case in which it was entered and cannot be used against the accused as an admission of guilt in any subsequent civil or criminal action.
We hold that State Bar is not entitled to a judgment as a matter of law on the uncontroverted facts in this case. Respondent’s denial of the charge to which he pled nolo con-tendere raises a genuine issue of material fact. Thus, State Bar is not entitled to summary judgment. The decision of the Court of *546 Appeals is reversed, and this case will be remanded to the Superior Court for the trial by jury as provided by G.S. 84-28(d)(l) (1975).
Reversed and Remanded.