11 N.C. App. 405 | N.C. Ct. App. | 1971
The defendant contends that the court committed prejudicial error in denying his motion to suppress the evidence gained as a result of the search of his person. We do not agree. The evidence, although conflicting, supports the ruling of the court.
An appeal is an exception to the judgment, and presents the face of the record proper for review. State v. Gwyn, 7 N.C. App. 397, 172 S.E. 2d 105 (1970). The record proper consists of the bill of indictment or warrant, the defendant’s plea, the verdict, and the judgment entered. State v. Gwyn, supra.
The bill of indictment in the instant case properly charged the defendant with the violation of G.S. 90-88.
The record discloses that after the defendant had changed his plea of not guilty to nolo contendere the court entered a verdict of “guilty.” The plea of nolo contendere may not be interposed as a matter of right, but may be accepted by the court only as a matter of grace. State v. Norman, 276 N.C. 75, 170 S.E. 2d 923 (1969). No formal record of the acceptance of the plea by the court is required, and the entry of judgment based thereon constitutes an acceptance of the plea. State v. Hicks, 269 N.C. 762, 153 S.E. 2d 488 (1967). A plea of nolo contendere empowers the judge to impose punishment as upon a plea of guilty, State v. Norman, supra, but it does not authorize or empower the judge to enter a verdict of guilty, State v. Thomas, 236 N.C. 196, 72 S.E. 2d 525 (1952), nor will such an entry support a recital in the judgment that the defendant had been “found guilty.”
In the instant case, the defendant’s plea of nolo contendere to the bill of indictment will support the prison sentence imposed. We find and hold that the defendant had a fair trial free from prejudicial error; however, for the reasons stated herein, the judgment is vacated, and the case is remanded to the superior court for the entry of proper judgment in accordance with the defendant’s plea.
Vacated and remanded.
