State v. Abbott

PARKER, J.

Defendant, an indigent, was represented at his trial by court-appointed counsel. Following the trial, for good cause shown the court permitted the trial counsel to withdraw from the case and appointed other counsel to represent defendant in connection with this appeal. However, because of delay in notifying the newly appointed counsel of his appointment, the statement of case on appeal was not prepared and served and the record on appeal was not docketed in this Court in apt time. In order to permit defendant’s appeal to be fully considered, this Court granted certiorari.

Appellant’s first assignment of error is that he was denied right to be represented by counsel at the preliminary hearing and for that reason improvidently waived the hearing. There is no merit in this assignment of error. A preliminary hearing is not an essential prerequisite to the finding of an indictment in this jurisdiction nor is it a critical stage of the proceeding, and a defendant may waive the hearing and consent to be bound over to the superior court to await grand jury action without forfeiting any defense or right available to him. Therefore, the fact defendant was not represented by counsel at the preliminary hearing deprived him of no essential right. State v. Gasque, 271 N.C. 323, 156 S.E. 2d 740.

Appellant’s second assignment of error is that the sentences imposed by the court were excessive in view of the fact that an accomplice received a probationary type sentence. There is also no merit in this assignment of error. “There is no requirement of law that defendants charged with similar offenses be given the same punishment. The punishment imposed in a particular case, if within statutory limits, is within the sound discretion of the presiding judge.” State v. Garris, 265 N.C. 711, 144 S.E. 2d 901; 3 Strong, N.C. Index 2d, Criminal Law, § 138. In the present case the punishment imposed was clearly within statutory limits. We have examined the entire record and in the trial and judgment, we find

No error.

Mallaed, C.J., and Britt, J., concur.