State v. Edmonds , 19 N.C. App. 105 ( 1973 )

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198 S.E.2d 27 (1973) 19 N.C. App. 105
STATE of North Carolina
v.
Morris Lorenzo EDMONDS.
No. 737SC503.
Court of Appeals of North Carolina.
July 25, 1973.
Atty. Gen. Robert Morgan by Charles A. Lloyd, Asst. Atty. Gen., Raleigh, for the State.

Ezzell & Henson by Thomas W. Henson, Rocky Mount, for defendant-appellant.

BRITT, Judge.

Defendant's only assignment of error is that the trial court erred in signing and entering the second judgment and commitment without specifically vacating or striking the prior judgment duly signed and entered at the same session (term). We hold that the court did not err.

Defendant recognizes, and authorities support, the principle that during a session of the court a judgment is in fieri and the court has authority in its sound discretion, prior to expiration of the session, to modify, amend or set aside the judgment. 5 Strong's N.C. Index 2d, Judgments, § 6, pp. 14-15; Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971); Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966); In re Moses, 17 N.C.App. 104, 193 S.E.2d 375 (1972).

While recognizing the principle stated, defendant contends the court may not enter two conflicting judgments. The record indicates that two days after the entry of a judgment imposing a prison sentence suspended upon compliance with certain conditions, but during the same session, the court entered the second judgment imposing an active sentence. By its latter action the court did not enter a second judgment to stand with the first judgment, thereby creating a conflict, nor did the court activate the suspended sentence; rather, the court, in its discretion, modified the first *28 judgment. State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936).

The judgment appealed from is

Affirmed.

MORRIS and PARKER, JJ., concur.