Opinion
No. COA13–208.
2013-06-4
STATE of North Carolina v. William Aldor DAVIAU.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.
On writ of certiorari to review order entered 4 June 2012 by Judge Mark E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 23 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellant.
ELMORE, Judge.
This Court allowed William Aldor Daviau's (defendant's) petition for writ of certiorari in order to review Judge Mark E. Powell's 4 June 2012 order denying defendant's application for writ of habeas corpus. The State concedes that the trial court lacked jurisdiction to enter judgment based on defective indictments, and we agree. Accordingly, we reverse the order and vacate the trial court's judgments.
On 4 January 2010, defendant was indicted for two counts of felony worthless check. Each indictment alleged defendant had written a check drawn on a bank in Brevard and “knew at the time that [he] did not have sufficient funds on deposit with the bank with which to pay the check upon presentation.” A jury found defendant guilty in both cases on 29 June 2011, and he was placed on 60 months of probation and ordered to pay more than $380,000 in restitution, fines, and court costs. Defendant's probation was revoked on 1 December 2011, and the trial court activated consecutive terms of six to eight months imprisonment.
On 4 June 2012, defendant filed an application for writ of habeas corpus in the trial court. Defendant argued that the trial court lacked jurisdiction because the indictments failed to allege the essential element that he lacked sufficient credit with the bank to pay the checks. Judge Powell summarily denied the application. On 29 June 2012, defendant filed a petition for writ of certiorari seeking review of the order, and this Court allowed the petition on 24 July 2012.
Defendant argues that Judge Powell erroneously denied his application for writ of habeas corpus because the indictments do not allege an essential element of the offense. After initially opposing issuance of the writ of certiorari, the State now concedes that it cannot distinguish this case from our Supreme Court's holding in State v. Edwards, 190 N.C. 322, 130 S.E. 10 (1925), that an indictment for worthless check must allege the defendant lacked both sufficient funds and sufficient credit to pay the check. Id. at 325, 130 S.E. at 11. We agree, and reverse the order denying the application for writ of habeas corpus. Accordingly, we also vacate the judgments suspending sentence entered 29 June 2011 and the judgments revoking probation entered 1 December 2011. If defendant is presently incarcerated based on these charges, he is entitled to his immediate release.
Reversed in part; vacated in part. Judges GEER and DILLON concur.
Report per Rule 30(e).