State v. Jackson

GRAHAM, Judge.

No assignments of error are brought forward and argued in defendant’s brief and his court appointed counsel states that he has reviewed the record and can find no error. There is plenary evidence to support the court’s conclusion that defendant’s plea of nolo contendere was freely, understanding^ and voluntarily made.

“A plea of nolo contendere, like a plea of guilty, leaves open for review only the sufficiency of the indictment and waives all defenses other than that the indictment charges no offense.” State v. Stokes, 274 N.C. 409, 412, 163 S.E. 2d 770, 773.

We find the bill of indictment insufficient to charge the offense of felonious escape. Under G.S. 148-45, “ [a] ny prisoner convicted of escaping or attempting to escape from the State prison system who at any time subsequent to such conviction escapes or attempts to escape therefrom shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than three years.” Also, “[a]ny prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than two years.”

To charge a felony for a second offense of escape it is necessary for the bill of indictment to refer to a “previous conviction of escape from the State Prison System” which is one of the necessary elements under G.S. 148-45. State v. Revis, 267 N.C. 255, 147 S.E. 2d 892. The bill of indictment here, which is quite similar to the one considered insufficient to charge a felony in Revis, fails to contain this essential element and therefore will not support a judgment imposing sentence for a second offense of escape.

The bill is also insufficient to charge an escape while serving a sentence for a felony conviction. An indictment charging that a defendant escaped while serving a sentence for a felony imposed in the superior court in a named county is sufficient without naming the felony. State v. Stallings, 267 N.C. 405, 148 S.E. 2d 252. Here, the indictment uses the word “felony” to describe one of the offenses for which defendant was serving sentence when he escaped. However, the indictment also alleges that sentences for both of the offenses were imposed in district courts. District courts are without jurisdiction to impose sentences in felony cases, G.S. 7A-272, and we must assume that any sentence imposed in a district court was for an offense that was of a grade less than felony.

The record suggests that the sentences defendant was serving at the time he escaped were for misdemeanor offenses and that the State intended to charge defendant with a second offense of escape.

While the bill of indictment is insufficient to charge a felonious escape, it will support a charge of misdemeanor escape. See State v. Revis, supra. Misdemeanor escape is punishable by imprisonment for not less than three months nor more than one year. The case will be remanded for proper judgment upon a plea of nolo contendere to a charge of misdemeanor escape.

Error and remanded.

Judge Britt concurs. Judge Campbell dissents.