State v. Myers ( 1973 )

CAMPBELL, Judge.

The defendant contends that the count in the bill of indictment charging felonious larceny, which was the second count, and the third count in the bill of indictment charging receiving stolen property, are inconsistent counts and the defendant could not properly plead guilty to both of them. In re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954). This position is well taken, and we do not commend the careless manner in which this case was presented. The solicitor should have dismissed the third count when he learned that the defendant was actually guilty of the first count of breaking and entering and the second count of felonious larceny. The solicitor failed to do this, and the trial judge treated the bill of indictment as though three separate felonies were charged; and, in fact, he informed the defendant that he could be sentenced for as much as thirty years. Despite the manner in which the case was handled at the trial level, nevertheless, we do not think that on this record the defendant has shown any prejudice. The record reveals that the defendant was clearly guilty of the felony of breaking and entering and of the felony of larceny and that he was pleading guilty to those two felonies for which he could have received a sentence of ten years on each one or a total of twenty years. The defendant was in no way misled. He was incorrectly informed by the trial judge that he could receive a maximum of thirty years, but he actually received a sentence of five to seven years which was considerably less than the maximum on any one of the counts charged in the bill of indictment. The case is controlled by State v. Meshaw, 246 N.C. 205, 98 S.E. 2d 13 (1957). Also see State v. Turner, 8 N.C. App. 541, 174 S.E. 2d 863 (1970).

In the absence of any prejudicial error we find

No error.

Judges Hedrick and Vaughn concur.