265 N.C. 579 | N.C. | 1965
At the time defendant committed the offense charged in cases numbered 5657, 5659, and 5696, and at the time he was sentenced therefor, the violation of G.S. 20-105 was a misdemeanor for which no specific punishment was prescribed. Immediately following this section in Volume 1C of the General Statutes of North Carolina (1953), the annotation prepared by the publisher begins with this statement: “CROSS Refbrenoe. As to misdemeanors for which no specific punishment is prescribed, see § 14-3.” This allusion to G.S. 14-3 was erroneous; the reference should have been to G.S. 20-176 which specifies that, unless another penalty is provided, every person convicted of a misdemeanor for the violation of Article 3 of the Motor Vehicle Act (which article includes G.S. 20-105) shall be punished by a fine of not more than $100.00, or by punishment in the county or municipal jail for not more than 60 days, or by both such fine and imprisonment. G.S. 14-3 has reference to' misdemeanors other than those created by Article 3 of
Since defendant pled guilty to three charges of a violation of G.S. 20-105, Judge Clarkson could have imposed a maximum sentence of 180 days or 6 months. Instead, he consolidated the cases and entered one judgment which could not legally exceed 60 days. State v. Seymour, 265 N.C. 216, 143 S.E. 2d 69.
Defendant, having been committed on January 8, 1964, had served 60 days at the time of his first escape. Nevertheless, his remedy was a petition for habeas corpus, not escape. State v. Goff, 264 N.C. 563, 142 S.E. 2d 142. His three escape sentences, plus a maximum legal 60-day sentence under G.S. 20-105, total 17 months. Defendant has now served in excess of that time. He is entitled to his immediate release, and it is so ordered.
The Clerk of this Court will certify a copy of this order to the State Prison Department, as well as to the Superior Court of Gaston County.
Certiorari allowed.
Defendant ordered released.
