State v. McBride , 240 N.C. 619 ( 1954 )

83 S.E.2d 488 (1954) 240 N.C. 619

STATE
v.
Harry McBRIDE, Jr.

No. 433.

Supreme Court of North Carolina.

September 22, 1954.

R. Brookes Peters and E. O. Brogden, Jr., Raleigh, for the State.

R. B. Templeton and W. H. Yarborough, Raleigh, for petitioner, defendant.

JOHNSON, Justice.

The maximum period during which the execution of a sentence in a criminal case may be suspended on conditions is five years. This is fixed by statute. G.S. § 15-200. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Wilson, 216 N.C. 130, 4 S.E.2d 440. A suspension of sentence for a period in excess of that authorized by statute is not void in toto. Ordinarily it is valid to the extent the court had power to suspend or stay execution and void merely as to the excess. Therefore in the case at hand the attempt to suspend for a period of eight years the sentence imposed for breaking and entering is void as to the last three years. Accordingly, the period of suspension is reduced by operation of law to the statutory maximum of five years. This period not having expired on January 25, 1954, Judge Rousseau had authority to hear and determine the question of revocation.

However, it is noted that Judge Rousseau revoked the suspension on the basis of his findings that the defendant had violated conditions "J" and "A" of the judgment; whereas it nowhere appears that the judgment contains any such conditions. It is manifest that Judge Rousseau, hearing the cause in Iredell County without opportunity to inspect the original judgment in Cabarrus County, was led to believe and acted on the assumption that the judgment was suspended upon the usual conditions set out in the printed forms promulgated by the State Probation Commission, which contain conditions "a" and "j" referred to in Judge Rousseau's order. However, the record shows that the printed form judgment was not used.

The crucial condition upon which the original sentence was suspended is "that the defendant be of good behavior and violate none of the laws of the state." It is established by authoritative decisions of this Court that in order to activate a sentence for breach of such condition it must be made to appear that the defendant has violated one of the criminal laws of this state. State v. Millner, 240 N.C. 602, 83 S.E.2d 546. It does not suffice to show a violation of a criminal law of another state where the condition of suspension is expressly limited to a violation of a law of this state.

It necessarily follows that in the absence of a finding that the defendant violated any one of the conditions upon which his sentence was suspended, the order of revocation was erroneously entered and will be vacated, but without prejudice to the power of the court below to activate the sentence for violation of any valid condition of suspension, if such be found and properly adjudicated during the period of suspension.

However, since the record here, which includes the State's answer to the defendant's petition, filed March 10, 1954, nowhere suggests or intimates that the defendant has violated any of the conditions upon which his sentence was suspended, we are not disposed to direct that he be held in custody for possible further inquiry. On this record he is entitled to immediate release. It is so ordered. To that end the Clerk of this Court will certify copies of this opinion to the Clerks of the Superior Court of Wake and Cabarrus Counties and to the Director of Prisons with direction that the defendant be discharged immediately from custody.

Error and remanded.