State v. Thompson , 268 N.C. 447 ( 1966 )

150 S.E.2d 781 (1966) 268 N.C. 447

STATE
v.
R. D. THOMPSON.

No. 821.

Supreme Court of North Carolina.

November 2, 1966.

Atty. Gen., T. W. Bruton and Staff Atty., Ralph White, for the State.

R. D. Thompson in pro. per.

PER CURIAM.

Thompson does not attack the judgment in No. 19069-A. The sentence imposed thereby is authorized by G.S. § 14-22.

Chapter 621, Session Laws of 1965, in full force and effect from and after its ratification on May 19, 1965, amended G.S. § 14-177 so as to read as follows: "Crime Against Nature. If any person shall commit the crime against nature, with mankind or beast, he shall be guilty of a felony, and shall be fined or imprisoned in the discretion of the court."

In State v. Blackmon, 260 N.C. 352, 132 S.E.2d 880, it was held that a statute (G.S. § 14-55) prescribing punishment "by fine or imprisonment in the State's prison, or both, in the discretion of the court," did not prescribe "specific punishment" within the meaning of that term as used in G.S. § 14-2. Where a person is convicted of any felony "for which no specific punishment is prescribed by statute," the maximum lawful term of imprisonment is ten years. G.S. § 14-2. Hence, the sentence imposed by the judgment in No. 19069, to wit, imprisonment for a term of not less than eighteen nor more than twenty years, substantially exceeds the maximum lawful sentence.

"It is the general rule in this jurisdiction that where a defendant has been properly convicted but given a sentence in excess of that authorized by law, and comes to this Court pursuant to a petition for writ of certiorari in a habeas corpus proceeding, when such defendant has not served as long under the sentence as he might have been legally imprisoned, we vacate the improper judgment and remand for proper sentence. In such case, the defendant should be given credit for the time served under the vacated judgment." State v. Austin, 241 N.C. 548, 550, 85 S.E.2d 924, 926.

In Case No. 19069, the crime against nature case, the said judgment is vacated, and the cause is remanded to the Superior Court of Robeson County for judgment imposing a proper sentence, Thompson to be given credit thereon for the time served under the vacated judgment.

The sentence of not less than five nor more than seven years imposed by the judgment pronounced in Case No. 19069-A will commence, as provided therein, at the expiration of the sentence imposed by the (new) judgment (hereafter) pronounced in Case No. 19069 as directed in this opinion.

The Clerk shall forward a certified copy of this opinion to each of the following: (1) The Clerk of the Superior Court of Robeson County; (2) the North Carolina Prison Department; and (3) Thompson.

Judgment in No. 19069 vacated, and cause remanded for proper judgment in that case.