Opinion
Filed 11 December, 1960.
Criminal Law 136 — Since a suspended sentence may not be activated upon a plea of nolo contendere to a subsequent offense, where the record is insufficient to show whether a charge of a subsequent offense was disposed of under a plea of nolo contendere or a verdict of guilty after trial, the cause must be remanded.
APPEAL by defendants from Gambill, J., 25 July 1960 Criminal Term, of GULFORD (Greensboro Division).
Attorney General Bruton, Asst. Attorney General Rountree for the State.
J. Kenneth Lee for the defendants.
At the above term of court the Solicitor moved the court to invoke the suspended sentences imposed on these defendants at the November Term 1959 of said court. The defendants had been found guilty of the illegal possession and possession for sale of taxpaid whiskey. The cases had been consolidated for trial and each defendant was given a sentence of eighteen months, suspended upon certain conditions, among which each defendant was to remain of good behavior and not violate any of the laws of North Carolina for a period of three years. The defendants appealed to the Supreme Court. This Court found no error. See 252 N.C. 499, 114 S.E.2d 355, where the facts are stated in detail.
The defendants were tried in the Municipal-County Court of Guilford, Criminal Division, in Greensboro, North Carolina upon warrants issued on 4 June 1960, charging them with gambling, in violation of G.S. 14-292.
The record in the Municipal-County Court is contradictory with respect to the plea entered by the respective defendants. The following statement appears therein: "These cases were tried in Municipal County Court of Greensboro, North Carolina, July 7, 1960. The defendants pleaded nolo contendere, there was a verdict of guilty and a fine against each defendant of $5.00 and cost which was paid."
The court below held that the conviction of these defendants in the Municipal-County Court of Guilford in Greensboro on the charge of gambling is a specific violation of the terms upon which the sentences imposed at the November Term 1959 of the Superior Court of Guilford County were suspended. The court thereupon activated the suspended sentences.
The defendants appeal, assigning error.
The State confesses error because it cannot be determined from the record whether the cases in the Municipal-County Court were disposed of on pleas of nolo contendere or upon verdicts of guilty after trial. For this reason the judgment entered below is set aside and the cause remanded to the Superior Court of Guilford County (Greensboro Division) for further hearing in accord with the opinion of this Court in S. v. Thomas, 236 N.C. 196, 72 S.E.2d 725.
Error and remanded.