DocketNumber: No. 7118SC345
Citation Numbers: 11 N.C. App. 520, 181 S.E.2d 741, 1971 N.C. App. LEXIS 1569
Judges: Brock, Hedrick, Morris
Filed Date: 6/23/1971
Status: Precedential
Modified Date: 11/11/2024
It seems that the Courts of Guilford County have been uncommonly patient in their efforts to convince this defendant that he should not practice veterinary medicine without a license. It can be seen from the conviction of 20 September 1968, from the findings of the District Court on 8 May 1969, and the, finding of the District Court on 5 October 1970, that the defendant violated G.S. 90-187 on five different occasions. Yet, he has only been charged with the one offense for which he stands convicted on 20 September 1968. A warrant could have been issued for each violation. “ . . . [E]ach act of such unlawful practice shall constitute a distinct and separate offense.” G.S. 90-187.
There is a strong inference from the evidence in the Superior Court that defendant was continually practicing veterinary medicine. An agent of the State Bureau of Investigation carried a dog to defendant’s residence for treatment, and his description of defendant’s basement during the examination and visit was, in part, as follows: “ . . . And during this time I observed certain items in the basement. There were four animal cages downstairs in this basement area, and there was a metal table similar to the examining tables I have seen in veterinarian hospitals. And there was a refrigerator and one large table on the far wall behind this examining table that contained various bottles and boxes and items that I read on several of the boxes, mange treatment, flea and tick spray, pow
Defendant does not contend that the evidence does not support a finding that he wilfully violated the terms of his suspended sentence. His only contention upon this appeal is that the judgment entered is erroneous and should be reversed.
The judgment entered in Superior Court reads as follows:
“It is Adjudged that the defendant be imprisoned for the term of thirty (30) days in the custody of the Sheriff, Common jail of Guilford County in any County Institution, under supervision of Board of County Commissioners. In lieu of the active sentence defendant may pay a fine of $500.00 to include the cost within a period of forty-eight (48) hours and continued on suspended sentence for a period of one year.” (Italics ours)
G.S. 15-200.1 provides that on appeal to the Superior Court from the revocation of suspended sentence by.a District Court, the Superior Court may modify or revoke the terms of a suspended sentence. In this case the Superior Court undertook to modify the 30-day sentence to provide for the payment of a fine as an alternative to going to jail.
Defendant argues that the requirement of the judgment that he pay the fine within 48 hours deprived him of the right to appeal from the imposition of the excessive fine, and therefore the judgment should be reversed. Defendant is not in position to complain that he was granted 48 hours rather than being immediately placed in custody. His appeal stayed the execution of the entire judgment and defendant has suffered no loss of rights.
That portion of the judgment quoted above which is in italics and reads “in the custody of the Sheriff, Common jail of
That portion of the judgment quoted above which is in italics and reads “$500.00 to include the cost” is in excess of the maximum fine of $100.00 allowed by G.S. 90-187.
That portion of the judgment quoted above which is in italics and reads “and continued on suspended sentence for a period of one year” fails to .specify or refer to any conditions of suspension.
We note ex mero motu that the last paragraph of the judgment provides for commitment to the State Department of Correction. This seems contrary to the possible intent of the sentence imposed.
We further note, ex mero motu, that the judge of Superior Court failed to make any findings of fact concerning a violation of the terms of the suspended sentence imposed 20 September 1968. It would appear at first glance that defendant had been tried in Superior Court upon a charge of practicing veterinary medicine without a license, instead of being charged with violation of terms of a suspended sentence. The first paragraph of the judgment reads as follows :
“In open court, the defendant appeared for trial upon the charge or charges of AFFF Practicing being a Veterinarian without a license. The court finds as a fact that the defendant did violate terms of the suspended sentence and affirms the sentence of the District Court and which is a violation of and of the grade of misdemeanor.”
It seems clear that there are times when one of the judgment forms cannot be used with accuracy. From the recitals in this judgment it cannot be determined with accuracy what terms of what suspended sentence the judge has found that defendant violated, or what sentence of what District Court the judge undertook to affirm. This judgment tells very little about the accusation against defendant or the resolution of the controversy.
The judgment of the Superior Court entered in this cause on 8 January 1971 is vacated, and this cause is remanded to the Superior Court of Guilford County for hearing upon defendant’s appeal from judgment of the District Court entered on 5 October 1970.
Judgment vacated.
Cause remanded.