State v. Harris

MORRIS, Judge.

The record of the case on appeal contains two exceptions made by defendant, but he failed to bring them forward in his brief. Thus they are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. Although appellant’s brief contains no assignments of error, the appeal itself constitutes an exception to the judgment and presents the case for review for error appearing on the face of the record. State v. Johnson, 7 N.C. App. 574, 173 S.E. 2d 75 (1970).

The record contained no transcript of plea and adjudication thereon. Ex mero motu, we entered an order directing the Clerk of the Superior Court of Caldwell County to certify to this Court all portions of the record in this case having to do with defendant’s plea of guilty; and further, if no transcript of plea or adjudication appeared in the record to so certify to this Court. The Clerk has certified that “there is no Transcript of Plea and Adjudication filed” in this case.

For the same reason as in the companion case, i.e., for failure of the record to show affirmatively that defendant freely, understandingly and voluntarily entered his plea of guilty, we must order that defendant’s plea of guilty be stricken and the matter remanded so that defendant may replead. State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971); State v. Vanderburg, 13 N.C. App. 248, 184 S.E. 2d 915 (1971).

New trial.

Chief Judge Mallard and Judge Parker concur.