State v. Ray

7 N.C. App. 129 | N.C. Ct. App. | 1969

VaughN, J.

The defendant brings forward two assignments of error by this appeal, the first being that the superior court erred in accepting the defendant’s plea of guilty and in thereafter sentencing the defendant to an active jail sentence without first inquiring from the defendant if he knew the possible consequences of his plea and whether he had understanding^ and knowingly entered the plea. The defendant did not make a motion to withdraw his plea of guilty in the superior court. Motions of such character are addressed to the sound discretion of the trial court. State v. Morris, 2 N.C. App. 611, 163 S.E. 2d 539. There is no contention that the plea was not voluntarily made, that the defendant did not understand what he was doing when the plea was entered, or that his attorney was not authorized to enter such a plea. It is to be noted that defendant is represented on the appeal by the same competent attorney whom he consulted after receiving the citation on 19 June 1968, and who represented him in the superior court. On the authority of State v. Woody, 271 N.C. 544, 157 S.E. 2d 108; State v. Abernathy, 1 N.C. App. 625, 162 S.E. 2d 114; and State v. Miller, 3 N.C. App. 227, 164 S.E. 2d 406, this assignment of error is overruled.

The defendant’s remaining assignment of error is the denial of his motion in arrest of judgment, the defendant contending that notice of appeal from his trial in the district court on 12 September 1968 was not given until 24 September 1968.

Where the defendant enters a plea of guilty his appeal presents for review only whether error appears on the face of the record proper. State v. Dawson, 268 N.C. 603, 151 S.E. 2d 203. A judgment in a criminal prosecution may be arrested on motion duly made when, and only when, some fatal error or defect appears on the face of the record proper. Defects which appear only by aid of the evidence cannot be the subject of a motion in arrest of judgment. 3 Strong, N.C. Index 2d, Criminal Law, § 127, p. 43.

The record does not show on its face that notice of appeal from the district court was not given in apt time. The record does disclose the following. A warrant was duly issued and was returned before the District Court of Durham County. The warrant charged a criminal offense. The defendant was tried thereon, found guilty and judgment was duly pronounced. The defendant appealed and posted bond for his appearance in the Superior Court of Durham County, where the case was docketed for trial. This gave the superior court jurisdiction and the right to proceed to trial on the original warrant. State v. Sloan, 238 N.C. 672, 78 S.E. 2d 738. In the present case only the date of the appeal entry is missing. In State v. Hill, 223 N.C. 753, 28 S.E. 2d 99, the record proper did not show any appeal entries in the municipal court. In that case, the Attorney General’s motion to dismiss the appeal for lack of jurisdiction was denied because it appeared from the record that the action originated in the municipal court and on appeal was tried in the superior court. A similar result was reached in State v. Hall, 267 N.C. 90, 147 S.E. 2d 548. The defendant’s motion in arrest of judgment was properly denied.

No error.

BROCK and Britt, JJ., concur.