202 S.E.2d 798 | N.C. Ct. App. | 1974
STATE of North Carolina
v.
Floyd BROWN, Jr.
Court of Appeals of North Carolina.
Atty. Gen. Robert Morgan by Asst. Atty. Gen., Claude W. Harris, Raleigh, for the State.
Joseph C. Ward, Jr., Lumberton, for defendant.
BROCK, Chief Judge.
The trial judge, upon competent evidence, adjudicated that defendant freely, voluntarily, and understandingly entered the plea of guilty. However, a court has no authority to accept a plea to a charge until it has properly acquired jurisdiction. A plea of guilty, standing alone, does not waive a jurisdictional defect. State v. Stokes, 274 N.C. 409, 163 S.E.2d 770. Article I, Sec. 22, N.C. Constitution provides: "Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or *799 impeachment. But any person, when represented by counsel, may, under such regulations as the General Assembly shall prescribe, waive indictment in noncapital cases." Trial upon a presentment was abolished by G.S. § 15-137. Therefore, no person may be put to answer a felony charge in the Superior Court except by indictment in noncapital cases, or, when represented by counsel, by waiver of indictment in noncapital cases under regulations prescribed by the General Assembly. The regulations for waiver of a bill of indictment in a noncapital case are prescribed by G.S. § 15-140.1.
Defendant, in the case presently before us, was charged in a bill of indictment with armed robbery. Defendant did not waive the finding of a bill of indictment charging accessory after the fact of armed robbery nor did the solicitor prepare an information setting out the elements of accessory after the fact of armed robbery. Where the bill of indictment charges armed robbery, both a waiver and information are necessary, under G.S. § 15-140.1, to vest the court with jurisdiction to try the defendant, or to entertain his plea, on a charge of accessory after the fact of armed robbery, because the offense of accessory after the fact is not a lesser included offense of the principal crime. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652.
Because the trial court did not have jurisdiction, the judgment must be arrested. The effect of arresting judgment in this case is to vacate the plea of guilty and the judgment. The State, if it so desires, may proceed against the defendant upon the charge of armed robbery as contained in the present bill of indictment. Or, if it so desires, the State may proceed against defendant upon a sufficient bill of indictment, or information (with waiver of indictment), charging the offense of accessory after the fact of armed robbery.
Judgment arrested.
MORRIS and CARSON, JJ., concur.
