State v. NormanState v. Norman
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A рlea of nolo contendere is a formal declaration on defendant’s part that he will not contend with the State in respect to the charge and is tаntamount to a plea of guilty for purposes of the particular criminal action in which it is tendered and accepted. The presiding judge acquires full power to pronounce judgment against the defendant for the crime charged in thе indictment. State v. Jamieson, 232 N.C. 731, 62 S.E. 2d 52; State v. Cooper, 238 N.C. 241, 77 S.E. 2d 695; State v. McIntyre, 238 N.C. 305, 77 S.E. 2d 698; State v. Shepherd, 230 N.C. 605, 55 S.E. 2d 79; State v. Stansbury, 230 N.C. 589, 55 S.E. 2d 185; State v. Ayers, 226 N.C. 579, 39 S.E. 2d 607; State v. Beasley, 226 N.C. 580, 39 S.E. 2d 607; State v. Parker, 220 N.C. 416, 17 S.E. 2d 475; State v. Burnett, 174 N.C. 796, 93 S.E. 473.
A defendant is not entitled to plead nolo contendere as a mаtter of right. It is pleadable only by leave of the court, and “its acceptance by the court is entirely a matter of grace.” State v. Thomas, 236 N.C. 796, 72 S.E. 2d 525.
A conditional plea оf nolo contendere is neither sanctioned by the law nor permitted by the Constitutiоn. State v. Camby, 209 N.C. 50, 182 S.E. 715; State v. Horne, 234 N.C. 115, 66 S.E. 2d 665. By Chapter 23 (as amended by Chapter 469) of the 1933 Session Laws, the General Assembly provided that in all trials in the superior court upon all charges other than caрital “it shall be competent for thé defendant to enter a conditional plеa of guilty therein, or nolo contendere, if the court shall permit the latter plea; and thereupon, the court may hear and determine the matter” without the intervention of a jury. The judge was authorized to pass upon the weight and sufficiency of the evidence, and if it satisfied him beyond a reasonable doubt of the defendant’s guilt, he was authorized to proceed to judgment and sentence upon thе plea entered in like manner as upon a conviction by a jury. If not so satisfied the plea was to be stricken out and a verdict of not guilty entered. This Act was hеld unconstitutional in State v. Camby, supra, on the ground that it was in conflict with Article I, Section 13, of the Constitution оf North Carolina which provides that “[n]o person shall be convicted of any сrime but by the unanimous verdict of a jury of good and lawful men in open court. The Legislature may, however, provide other means of trial for petty misdemeanors with thе right of appeal.”
Recently, the Judicial Council recommended that Article I, Section 13, of the Constitution of North Carolina be modified to allow the Generаl Assembly, if it so desired, to provide for waiver of a jury trial upon a plea of nоt guilty and to permit a defendant, at his option, to have his guilt passed upon by a judge rather than a jury. The Constitutional Study Commission was advised of this suggestion and included it among bills submittеd to the 1969 General Assembly. The proposal was rejected by the General Assembly, however, and the Constitution with respect to jury trials remains unchanged.
In light of the forеgoing principles, we are constrained to hold that the trial judge accеpted defendant’s plea as his authority to hear the evidence and, in lieu оf a jury, to pass upon the question of defendant’s guilt or innocence. That is exаctly what he told defendant the plea of nolo contendere meant аt the time it was tendered. That is the inference to be drawn from the fact that morе than sixty pages of testimony was elicited bearing upon every facet and dеtail of the crimes charged in the bills of indictment. That defendant so understood it is impliеd by his attempt to prove an alibi. That the Court so understood it may be inferred from thе recitals
Since there must be a new trial, we put aside the question whether, as сontended by defendant, the evidence offered by the State establishes his innoсence of the charges contained in the bills of indictment.
The proceeding in the superior court was contrary to constitutional requirements; hence, the decision of the Court of Appeals upholding the judgment based thereon is reversed. The case is remanded to that Court where it will be certified to the trial court for a new trial in accord with this opinion.
Reversed and remanded.
Mooes, J., took no part in the consideration or decision of this case.