State v. Stafford

262 S.E.2d 695 (1980)

STATE of North Carolina v. Sammy M. STAFFORD.

No. 7929SC730.

Court of Appeals of North Carolina.

February 19, 1980.

*696 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen., Grayson G. Kelley, Raleigh, for the State.

J. Christopher Callahan, Rutherfordton, for defendant appellant.

ARNOLD, Judge.

We find no error in the denial of defendant's motions to suppress and to dismiss. Ample evidence appears to support the trial court's finding that defendant's statement to the police was "voluntarily, knowingly, and intelligently made." Any doubts the investigating officers may have had as to defendant's guilt are irrelevant. Moreover, there is no contention that an unreasonable time elapsed between defendant's being advised of his rights and his giving the statement. The State presented evidence of each essential element of the crime.

Defendant argues that Curtis Forester should not have been allowed to testify that the value of the items stolen was $1,070, since he further testified that this was the replacement cost of the items. Defendant is correct that in determining whether a crime is felonious or nonfelonious the proper measure of value is the price the stolen items in their condition at the time they were stolen would bring on the open market. State v. Dees, 14 N.C.App. 110, 187 S.E.2d 433 (1972). However, we find any error in the admission of Forester's testimony to be harmless, since the larceny in the present case is a felony without regard to the value of the property taken. See G.S. 14-72(b)(2) and G.S. 14-54. We *697 reject defendant's argument that the purportedly inflated valuation "inflamed" the jury.

The trial court, apparently upon its own motion, arrested judgment on the conviction of felonious larceny. Defendant argues, therefore, that at the most he can be guilty of misdemeanor breaking or entering. Generally, a judgment is arrested because of insufficiency in the indictment or some fatal defect appearing on the face of the record. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972). Assuming that such was the case here (no reason for the arrest of judgment appears in the record on appeal), the arrest of judgment on the conviction for felonious larceny has no effect on the conviction for felonious breaking or entering. The essential elements of felonious breaking or entering are (1) breaking or entering (2) any building (3) with intent to commit any felony or larceny therein. G.S. 14-54(a) (emphasis added). It is not necessary for conviction under this statute that a felony or larceny actually be committed in the building. It is merely the intent at the time of the breaking or entering to commit the felony or larceny within the building that is required. State v. Sawyer, 283 N.C. 289, 196 S.E.2d 250 (1973). This assignment of error is without merit.

Finally, defendant assigns error to the entry of judgment against him for attorney's fees without notice or an opportunity to be heard. G.S. 7A-455(b) allows the court to enter a civil judgment against a convicted indigent for attorney's fees and costs. Such a judgment was entered against defendant in this case. In State v. Crews, 284 N.C. 427, 442, 201 S.E.2d 840, 849-50 (1974), our Supreme Court vacated such a judgment "without prejudice to the State's right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing." The State argues here that defendant was given sufficient notice of the possibility of such a civil judgment by the "Affidavit of Indigency" which he was required to complete before counsel was appointed for him. On this form, near the top, in italicized type appears the following: "NOTE: If you are convicted the value of services rendered by the lawyer furnished for you will be recorded as a judgment and will be a lien against you." We question the sufficiency of this notice, and we note further that even if it were sufficient, there appears no indication that defendant received any opportunity to be heard on the matter. Guided by the decision in State v. Crews, supra, we vacate this civil judgment and remand for a hearing upon proper notice.

In the criminal conviction we find no error.

The civil judgment is vacated and remanded.

CLARK and ERWIN, JJ., concur.