State v. Gallamore , 6 N.C. App. 608 ( 1969 )

170 S.E.2d 573 (1969) 6 N.C. App. 608

STATE of North Carolina
v.
Robert Eugene GALLAMORE.

No. 6929SC397.

Court of Appeals of North Carolina.

November 19, 1969.

Ramsey & White, by William R. White, Brevard, for defendant appellant.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William W. Melvin and Staff Atty. T. Buie Costen, Raleigh, for the State.

CAMPBELL, Judge.

This appeal presents first the question of law as to the reasonableness of the terms of the suspension of the judgment. Compare State v. Baynard, 4 N.C.App. 645, 167 S.E.2d 514 (1969). The statute, G.S. § 15-180.1, allows an appeal to test allegations of errors of law even though a suspended sentence was provided in the judgment.

Reparation of injuries to a party aggrieved as a result of or incident to an offense committed by a criminal defendant as a condition to suspension of sentence has long been recognized in North Carolina judicially and by statute. Myers v. Barnhardt, 202 N.C. 49, 161 S.E. 715 (1932); G.S. § 15-199(10). State v. Simmington, 235 N.C. 612, 70 S.E.2d 842 (1952).

We cannot say that any of the terms of the suspension of sentence are unreasonable. See State v. Baynard, supra. There is no merit in this assignment of error.

The defendant further contends, however, that the sentence suspended was in excess of the statutory limits for such an offense. There is merit in this position.

A few days before the judgment was entered in this case the legislature changed the statute. The learned trial judge had no way of knowing of this change as it had not been published. The statute now provides:

"§ 20-179. Penalty for driving while under the influence of intoxicating liquor or narcotic drugs.—Every person who is convicted of violating § 20-138, relating to habitual users of narcotic drugs or driving while under the influence of intoxicating liquor or narcotic drugs, shall, for the first offense, be punished by a fine of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00), or imprisonment for not less than thirty (30) days, nor more than six months, or by both such fine and imprisonment, in the discretion of the court. For a second conviction of the same offense, the defendant shall be punished by a fine of not less than two hundred dollars ($200.00) nor more than five Hundred Dollars ($500.00), or imprisonment for not less than two months, nor more than six months, or by both such fine and imprisonment, in the discretion of the court. For a third or subsequent conviction of the same offense, the defendant shall be punished by a fine of not less than five hundred dollars ($500.00) or by both such fine and imprisonment in the discretion of the court not to exceed two years. (1937, c. 407, s. 140; 1947, c. 1067, s. 18; 1967, c. 510; 1969, c. 50.)" [Ratified and effective 3/10/69.]

Since the sentence of 18 months exceeds the statutory limit, this case must be remanded for the imposition of a sentence within the statutory limitation.

Remanded for judgment.

PARKER and GRAHAM, JJ., concur.