State v. Baynard

167 S.E.2d 514 (1969) 4 N.C. App. 645

STATE of North Carolina
v.
Otis Charles BAYNARD.

No. 6929SC266.

Court of Appeals of North Carolina.

May 28, 1969.

Atty. Gen. Robert Morgan, Asst. Atty. Gen., William W. Melvin and Staff Atty., T. Buie Costen, Raleigh, for the State.

Garren & Stepp, by W. Hailey Stepp, Jr., Hendersonville, for defendant appellant.

CAMPBELL, Judge.

The only question presented for decision is whether the conditions attached to the suspension of the sentence are reasonable.

The imposition of sentences with provision for suspension thereof and probation are provided for by statute. G.S. § 15-197 et seq.

G.S. § 15-180.1 provides for an appeal from a suspended sentence:

"* * * The purpose of this section is to provide that by giving notice of appeal the defendant does not waive his acceptance of the terms of suspension of sentence. Instead, by giving notice of appeal, the defendant takes the position that there is error of law in his conviction."

It is to be noted that in the judgment entered by Judge McLean in the trial court, it is specifically set out:

"Upon motion of the defendant, through his counsel and by and with his consent and at his request, the foregoing prison sentence is suspended for a period of 5 yrs. * * *"

The appeal therefore presents only: "* * * error of law. * * *"

The period of 5 years or the duration of the suspension is within the limits provided by law. G.S. § 15-200; State v. Gibson, 233 N.C. 691, 65 S.E.2d 508.

The only remaining ground for attack in the instant case is based upon the fact that the conditions are unreasonable and this in turn is based upon the proposition that the conditions are unrelated to and did not grow out of the offense for which the defendant was convicted.

The defendant contends that conditions No. 2 and No. 4 are unreasonable and therefore void.

In the case of State v. Smith, 233 N.C. 68, 62 S.E.2d 495, the defendant had been convicted on a charge of larceny of 900 pounds of seed cotton. The defendant in that case was sentenced to two years and placed on probation with a special condition that the defendant "be denied the right to operate a motor vehicle on the highways of North Carolina during the first twelve months of probation." In that case, Barnhill, J., (later C. J.) speaking for the Court stated:

"While at first blush larceny and the operation of a motor vehicle would seem to be wholly unrelated, such is not necessarily the case here. The defendant was charged with the larceny of 900 pounds of seed cotton. The `taking and carrying away' of such a heavy and bulky quantity of seed cotton no doubt involved the use of a vehicle. If, in committing the larceny the defendant used an automobile, the crime and the operation are directly related. It is presumed, in the absence of proof to the contrary, that the proceeding was legal and the court acted with proper discretion. State v. Hilton, 151 N.C. 687, 65 S.E. 1011; State v. Everitt, 164 N.C. 399, 79 S.E. 274.

Furthermore, the primary purpose of a suspended sentence or parole is to further the reform of the defendant. There is strong suggestion in the record that defendant is addicted, at least to some extent, to the use of alcoholic beverages. The judge may have considered that the primary need of defendant was to be kept off the public roads while under a steering wheel. Certainly there is nothing in the record to induce a contrary view. State v. Ray, 212 N.C. 748, 194 S.E. 472."

In the case at bar, the defendant had been convicted of driving a motor vehicle while under the influence of intoxicating beverages. It is obvious from the conditions imposed that the Judge considered that the primary need of defendant was to be kept away from alcoholic beverages and to be kept off the public roads when in a motor vehicle whether as passenger or as driver unless it was a matter of business.

"Certainly there is nothing in the record to induce a contrary view. * * *"

So far as this record discloses, the conditions imposed were reasonable, both in substance and time. Therefore, the judgment of the Court below must be

Affirmed.

MORRIS and PARKER, JJ., concur.