State v. Lowry , 10 N.C. App. 717 ( 1971 )

179 S.E.2d 888 (1971) 10 N.C. App. 717

STATE of North Carolina
v.
Bobby LOWRY.

No. 7116SC54.

Court of Appeals of North Carolina.

March 31, 1971.

William S. McLean, Lumberton, for defendant appellant.

Atty. Gen. Robert Morgan, by Staff Atty. Richard N. League, Raleigh, for the State.

CAMPBELL, Judge.

Defendant contends that it was error for the trial judge, subsequent to notification of defendant's intention to exercise his right to appeal, to strike the original sentence of forty-five days and to impose a sentence of six months even though the statutory minimum for the crime committed is six months.

"``In criminal cases the right of appeal by a convicted defendant from a final judgment is unlimited in the courts of North Carolina. This right of appeal is a substantial right. G.S. § 15-180. * * *'" State v. May, 8 N.C.App. 423, 174 S.E.2d 633 (1970). The Supreme Court of North Carolina has held that the trial judge may not impose a penalty on the exercise of the right to appeal. State v. Patton, 221 N.C. 117, 19 S.E.2d 142 (1942); State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651 (1966).

A trial judge may increase the sentence given a defendant only where the record does not sustain the suggestion that the defendant was being penalized for announcing his intention to appeal. State v. Bostic, 242 N.C. 639, 89 S.E.2d 261 (1955).

In the present case, the record contains the following:

"After the pleas and original sentence on August 31, 1970 the Court received a written note from the defendant who was in jail, notifying the Court of his desire to appeal. He was thereafter brought into Court on two or more occasions at which time he was advised that the 45-day sentence would necessarily be stricken on motion by the Solicitor and that a new sentence of 6 months, the minimum sentence for the crime which he was charged, would be entered; that the defendant requested time to consider it and confer; that he was thereafter brought into Court and the Honorable William S. McLean was appointed to confer with him with reference to his appeal or the withdrawal of same. After said conference the defendant insisted on his appeal, whereupon on motion of the Solicitor that the former judgment be stricken for that it was not authorized by statute and that the minimum sentence as provided by statute be imposed was granted and that on September 4, 1970 the original sentence was stricken and judgment and commitment was entered and ordered. * * *"

Here, the record indicates that one of the reasons for the imposition of the greater sentence may have been as a penalty because of the appeal of the defendant. The defendant was brought into court on at least two occasions prior to the imposition of the six months' sentence and was warned that the statutory minimum was six months. It was only after the defendant announced his decision to appeal that the greater sentence was imposed. The State contends that the trial judge intended nothing more than to correct the sentence imposed and bring it within the statutory limits. This may be so but it was incumbent upon the trial judge to correct the sentence in such a manner as to preclude any inference that the greater sentence was given as a penalty for exercising the right of appeal. By proceeding in the manner in which he did, the trial judge allowed the inference that the greater sentence was imposed as a penalty. Such an inference has a chilling effect on the exercise of the right to appeal and cannot be tolerated. State v. Patton, supra; State v. Rhinehart, supra.

The defendant is now entitled to the benefit of the lesser sentence of forty-five days, and it is so ordered.

Modified and affirmed.

BRITT and HEDRICK, JJ., concur.