Matter of Gallimore , 59 N.C. App. 338 ( 1982 )

296 S.E.2d 509 (1982)

In the Matter of Talton GALLIMORE, Jr. Re-Sentencing Hearing.

No. 8222SC145.

Court of Appeals of North Carolina.

November 2, 1982.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Walter M. Smith, Raleigh, for the State.

Barnes, Grimes & Bunce by Jerry B. Grimes, Lexington, for defendant-appellant.

ARNOLD, Judge.

Defendant first attacks the sentence on the grounds that it was an indefinite indeterminate sentence and that there was no difference between the minimum and maximum periods. An indeterminate sentence is one where the court does not fix duration but only fixes maximum and minimum limits. Black's Law Dictionary 694 (5th ed. 1979).

Under G.S. 148-42, which was in effect at defendant's original sentencing, trial judges were "authorized in their discretion in sentencing prisoners to imprisonment to commit the prisoner to the custody of the Commissioner of Correction for a minimum and maximum term."

But G.S. 148-42 was repealed in 1977. See, 1977 N.C. Sess. Laws Ch. 711, § 33. The law that replaced it was enacted that same year and was effective when defendant was resentenced in 1981. As a result, G.S. 15A-1351(b), and not G.S. 148-42, governed the resentence.

Application of the more recent statute in effect when defendant was resentenced is not unlike the facts and reasoning of State v. Mitchell, 6 N.C.App. 534, 170 S.E.2d 355 (1969). In Mitchell, the court held that a defendant was entitled to be sentenced under an amended statute as it read at the time of sentencing, even though the crime was committed prior to the effective date of the amendment. Although Mitchell is not directly on point with this case, we find enough similarities to apply G.S. 15A-1351(b) to this case.

G.S. 15A-1351(b) requires only the imposition of a maximum term, with the statement of a minimum term as optional. The sentencing judge may also state that a term constitutes both the minimum and maximum terms.

The sentences imposed in this case are correct under G.S. 15A-1351(b). They both contain a maximum term which is required. Even if they do not contain a minimum term it is not error. Finally, the fact that the two terms in each sentence are equal is acceptable as the judge could have seen them as both the minimum and maximum.

On defendant's second assignment of error, we agree with the State that the court correctly refused to grant a continuance to allow the defendant to obtain the testimony of Central Prison Warden Sam Garrison. Before a continuance of the sentencing hearing will be granted the defendant must show "good cause." G.S. 15A-1334(a). That determination is within the trial judge's discretion. State v. McLaurin, 41 N.C.App. 552, 255 S.E.2d 299 (1979), cert. denied, 300 N.C. 560, 270 S.E.2d 113 (1980).

We find no abuse of discretion here where defendant had the benefit of an affidavit by the deputy warden. That affidavit showed that his prison record had been good, and that he was in poor health. Garrison's affidavit would not have added information important enough to warrant a continuance.

Finally, defendant finds error in that the 1981 resentence was similar to his original sentence. We find no error on this point because the resentence was within G.S. 15A-1331(a)(3), which applies no matter when a defendant's guilt was determined. It states "[t]he criminal judgment against a person ... may ... include a sentence in accordance with the provisions of this Article to one or a combination of the following alternatives ... [o]ther punishment authorized or required by law." There is no error since the resentence was authorized by law.

Affirmed.

MARTIN and WHICHARD, JJ., concur.