State v. Shackleford , 1982 N.C. App. LEXIS 3111 ( 1982 )

HILL, Judge.

In this case, the defendant was not present for jury selection. The case was called on Wednesday afternoon, 4 November 1981. After giving preliminary instructions to the prospective jurors, the court explained defendant’s absence, stating: “Now, Mr. Shackleford, as is apparent, is not in court due to some misinformation that he received from his attorney and from the District Attorney’s office as to when his case was going to be called.” Without comment or objection by defendant’s counsel, the jury was selected. Trial resumed the following morning with defendant present.

In every criminal prosecution, the accused has the right to be present at every stage of the trial, unless he waives the right. State v. Hayes, 291 N.C. 293, 230 S.E. 2d 146 (1976). In non-capital felony cases, only defendant may waive the right. In misdemeanor cases, defendant may, in addition, waive his right through his counsel with the consent of the court. State v. Ferebee, 266 N.C. 606, 146 S.E. 2d 666 (1966).

Here, defendant was charged with felonious larceny and breaking or entering. Although his attorney selected the jury in defendant’s absence, the defendant retained his right to be present. Therefore, defendant is entitled to a

New trial.

Judges Arnold and Johnson concur.