State v. Matre , 32 N.C. App. 309 ( 1977 )

231 S.E.2d 688 (1977)

STATE of North Carolina
v.
Rick Van MATRE.

No. 7621SC625.

Court of Appeals of North Carolina.

February 2, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Claudette Hardaway, Raleigh, for the State.

W. Joseph Burns, Billings & Billings, Winston-Salem, for defendant-appellant.

CLARK, Judge.

A "youthful offender" is defined in G.S. 148-49.2 as a person under the age of 21 at the time of conviction. There is a marked distinction between a "youthful offender" and a "committed youthful offender".

G.S. 148-49.2, a part of Article 3A, Chapter 148, General Statutes of North Carolina, defines a "committed youthful offender" as "one committed to the custody of the Secretary of Correction under the provisions of this Article." Article 3A provides for an extensive program of treatment, study and release for the "committed youthful offender", a program which is not available to a regular "youthful offender". The purposes of Article 3A "are to improve the chances of correction, rehabilitation and successful return to the community of youthful offenders.. . ." G.S. 148-49.1.

This Court first considered the role of the trial court in sentencing a person under the age of 21 at the time of a conviction in State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975), holding that G.S. 148-49.4 required that the sentencing judge could not sentence a "youthful offender" under any other applicable penalty provision unless the court finds that the youthful offender will "not derive benefit from treatment and supervision" as a committed youthful offender pursuant to Article 3A, Chapter 148. See also State v. Worthington, 27 N.C.App. 167, 218 S.E.2d 233 (1975).

We reject the contention of the State that any sentence of imprisonment upon a "youthful offender" without a finding that he would not derive benefit from a committed youthful offender sentence automatically constitutes a committed youthful offender sentence under G.S. Chapter 148, Article 3A. The judgment of the trial court, which is the basis of the defendant's commitment to the Department of Corrections, must conform to the sentencing statutes so as to accurately reflect the intended sentence.

Since the trial court did not sentence the youthful offender defendant as a "committed youthful offender" and did not find that defendant will not derive benefit from treatment and supervision as a committed youthful offender, the judgment is vacated and this cause is remanded for proceedings and resentencing consistent with this opinion.

Judgment Vacated and Remanded.

VAUGHN and HEDRICK, JJ., concur.