State v. Fox , 34 N.C. App. 576 ( 1977 )

239 S.E.2d 471 (1977) 34 N.C. App. 576

STATE of North Carolina
v.
David Len FOX.

No. 7725SC378.

Court of Appeals of North Carolina.

December 7, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Harris & Bumgardner by Tim L. Harris, Gastonia, for defendant.

BROCK, Chief Judge.

Defendant argues that G.S. 7A-290 gives him the right to appeal to superior court for trial de novo in spite of his guilty plea in district court. In light of the decisions interpreting G.S. 7A-290 and former G.S. 15-177.1, we agree.

G.S. 15-177.1 was enacted in 1947 and read as follows:

"In all cases of appeal to the superior court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial anew and de novo by a jury, without prejudice from the former proceedings of the court below, irrespective of the plea entered or the judgment pronounced thereon."

G.S. 7A-290, enacted as part of the Judicial Department Act of 1965 which created the district court division of the General Court of Justice, reads in pertinent part as follows:

"Any defendant convicted in district court before the judge may appeal to the superior court for trial de novo."

These statutes entitle an accused in a criminal case to a trial de novo as a matter of right on appeal to the superior court from an inferior court, even when the accused entered a guilty plea in the inferior court. State v. Meadows, 234 N.C. 657, 68 S.E.2d 406 (1951); State v. Broome, 269 N.C. 661, 153 S.E.2d 384 (1967); State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Bryant, 11 N.C.App. 423, 181 S.E.2d 211 (1971). The repeal of G.S. 15-177.1 by a technical changes act (Session Laws—1973, Chapter 1141) should not alter this rule. This conclusion is buttressed by the fact that there is no statute pertaining to appeal to superior court for trial de novo from a guilty plea in district court which parallels G.S. 15-180.2 (providing that there is no right of appeal to the appellate division of a plea of guilty or nolo contendere to a charge pending in the superior court).

Thus, where a defendant has appealed for trial de novo in superior court, a judge of that court has no authority, absent satisfactory cause shown or without the consent of the defendant, to dismiss the appeal and remand the case for compliance with the judgment of the district court. State v. Bryant, supra. The record in this case discloses no consent on the part of the defendant and the trial judge erred in remanding the case to the district court. Defendant is entitled to trial in the superior court.

The State strenuously argues that should this Court determine that the defendant is entitled to trial de novo in superior court, then the State should not be bound by its portion of the plea agreement and should be permitted to try the defendant on the original felony charges. This argument raises issues relating to due process and double jeopardy which are not squarely before this Court at this time. However, several points should be noted. The district court proceeding at which defendant entered his guilty pleas was a probable cause hearing, not a trial; indeed, the district court had no jurisdiction to try the original felony charges. Admittedly, a plea of guilty, if accepted and entered by the court, is equivalent to a conviction. State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971). It is also the rule that

"[w]hen an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose." State v. Sparrow, supra, 276 N.C. at 507, 173 S.E.2d at 902.

The State argues persuasively that plea bargaining, legitimized in North Carolina by G.S. 15A-1021 et seq. would be seriously hampered if a defendant originally charged with a felony could avoid prosecution by pleading guilty to reduced charges in district court and then appeal and receive a trial de novo only on the reduced charges. Where a defendant elects not to stand by his portion of a plea agreement, the State is not bound by its agreement to forego the greater charge. See U. S. v. Anderson, 514 F.2d 583 (7th Cir. 1975); U. S. v. Williams, 534 F.2d 119 (8th Cir. 1976), cert. den., 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); Harris v. Anderson, 364 F.Supp. 465 (W.D.N.C.1973). This Court's decisions in State v. Urban, 31 N.C. App. 531, 230 S.E.2d 210 (1976) and State v. Mayes, 31 N.C.App. 694, 230 S.E.2d 563 (1976) are factually distinguishable from the case at hand.

For the reasons stated, the order of the trial judge remanding the case to the district court is reversed and the cause is remanded to the superior court for trial.

If the State elects to do so, the district attorney may send bills of indictment to the Grand Jury charging defendant with felonious breakings and enterings and felonious larcenies, as were charged in the two original arrest warrants. If one or more true bills are returned, the State may try defendant upon the felony charges or any included lesser offenses.

Reversed and remanded.

PARKER and ARNOLD, JJ., concur.