In Re Wilson , 3 N.C. App. 136 ( 1968 )

164 S.E.2d 56 (1968) 3 N.C. App. 136

In the Matter of Charles Pope WILSON.

No. 6828SC384.

Court of Appeals of North Carolina.

November 20, 1968.

Atty. Gen., T. W. Bruton by Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

McGuire, Baley & Wood by Philip G. Carson, Asheville, for defendant appellant.

MORRIS, Judge.

An appeal is not allowed from a judgment entered in a habeas corpus proceeding. Such judgments may be reviewed by way of certiorari if the court, in its sound discretion, chooses to grant such a writ. In re Palmer, 265 N.C. 485, 144 S.E.2d 413; In re Croom, 175 N.C. 455, 95 S.E. 903. Accordingly, the defendant's appeal is dismissed as improper. However we have considered the record as a petition for writ for certiorari, which has been allowed.

The defendant argues that he was denied due process and equal justice when he was given a longer sentence in the Superior Court than he had received in the General County Court. In an appeal from an inferior court to the superior court, in a criminal case, the defendant receives a trial de novo, and without prejudice from the proceedings below. The sentence, if any, imposed in the superior court is without regard to what occurred in the court below. For this reason, the sentence may be longer or shorter than that given in the court below. State v. Morris, 2 N.C. App. 262, 163 S.E.2d 108. A defendant should not have any proprietary rights in a sentence so long as he is asserting his rights to trials in the various courts. To allow defendants a trial de novo with the certainty that the sentence imposed cannot be increased upon conviction in the higher court would tend to reduce such appeals from the standpoint of the defendant to a "heads I win, tails you lose" proposition. The effect could only be an increasing disrespect for the courts.

Additionally, the maximum sentence is fixed by the Legislature. It is not and should not be within the power of a judge of a lower court, in effect, to change the statute by imposing a sentence less than the maximum and when a new trial is had, tie the hands of the court which is superior to his.

The trial judge did not err in failing to give the defendant credit for the time which he spent in jail awaiting a trial in the Superior Court, State v. Weaver, 264 N.C. 681, 142 S.E.2d 633, for his status was that of a prisoner awaiting trial. He was held in jail because of his inability to post bond. He was not serving a sentence as punishment for the crime charged.

The defendant entered a plea of guilty when he was called for trial in the Superior Court. The sentence imposed by the court was within the limit which is allowed by law for the crime charged. See G.S. § 14-33 and G.S. § 14-3. The record docketed in this Court is dismissed as an appeal, but having considered the matter on certiorari, in the trial below, we find

No error.

MALLARD, C. J., and CAMPBELL, J., concur.