State v. Powell

11 N.C. App. 194 | N.C. Ct. App. | 1971

BROCK, Judge.

Defendant assigns as error the court’s acceptance of his plea of guilty, the defendant having informed the court that he was under the influence of alcohol. The record shows that the trial judge, who had the opportunity to observe the defendant closely, examined him painstakingly and found him competent to plead to the indictment. In a proper case, it might be more appropriate to postpone the arraignment of an intoxicated defendant, and possibly to adjudge him in contempt of court. However, upon the facts of this case, we cannot hold that to accept a plea of guilty from such a defendant is error as a matter of law, or abuse of discretion.

Defendant assigns as error that the court failed to find as a fact that the plea of guilty was knowingly and-voluntarily made. If the facts of this case require such an express finding, but cf. State v. Johnson, 7 N.C. App. 53, 171 S.E. 2d 106, the record plainly shows that such a finding was in fact made. This assignment of error is overruled.

Defendant assigns as error that the court entered judgment of imprisonment on 11 December 1970 “. . . when in fact judgment was entered on August 26, 1970 when the defendant was ordered ‘committed to the custody of the Commissioner of the Department of Corrections for a diagnostic study of the defendant for a period of sixty days with the right and privilege of the department to hold the defendant for an additional thirty days should the need arise and that the court be advised of the recommendations of the diagnostic center prior to the judgment of the case.’ ” The prior order, defendant contends, . . would seem to preclude the State from entering a second judgment against the defendant.” G.S. 148-12 provides for the procedure followed in this case. This assignment of error is without merit and is overruled.

The judgment fails to provide that defendant shall receive credit against his sentence for time spent in the diagnostic center, as required by G.S. 148-12 (b). Therefore the judgment must be vacated and the case remanded for entry of judgment so providing.

Judgment vacated and case remanded.

Judges Morris and Hedrick concur.