State v. Davis

103 S.E.2d 289 (1958)

248 N.C. 318

STATE v. Isaac DAVIS.

No. 433.

Supreme Court of North Carolina.

April 30, 1958.

George B. Patton, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

Carl E. Caddy, Jr., Raleigh, for defendant.

DENNY, Justice.

It appears that the defendant was without counsel when he was convicted and sentenced on the charge of breaking and entering at the March Term 1956 of the Superior Court of Wake County. There is no showing that the appointment of defense counsel was essential to a fair trial in the Superior Court, or that the appointment of counsel was requested. State v. Hackney, 240 N.C. 230, 81 S.E.2d 778.

There is no statutory requirement in this jurisdiction that indigent defendants not accused of capital felonies must have court appointed counsel. State v. Hedgebeth, 228 N.C. 259, 45 S.E.2d 563; State v. Cruse, 238 N.C. 53, 76 S.E.2d 320. Cf. State v. Simpson, 243 N.C. 436, 90 S.E.2d 708, and see G.S. § 15-4.1.

A defendant has the constitutional right to be represented by counsel and to have counsel assigned, if requested, when the circumstances are such as to show apparent necessity for counsel to protect his rights. But in the absence of a request therefor, the propriety of providing counsel for a person accused of an offense less than a capital felony, rests in the sound discretion of the trial judge. State v. Hedgebeth, supra; In re Taylor, 230 N.C. 566, 53 S.E.2d 857; State v. Hackney, supra. See People v. Logan, 137 Cal. App. 2d 331, 290 P.2d 11, where numerous authorities from many jurisdictions are cited.

The fact that Judge Hobgood ordered the sentence imposed at the March Term 1956 into effect at the May Term 1956, after finding as a fact that the defendant had not served his case on appeal within the time allowed by the court, did not prevent the defendant from having his appeal docketed in the Supreme Court for review of the record proper. But since the defendant did not request the appointment of counsel, and did not cause his appeal to be docketed in order that it might be heard on the record proper, nor apply for a writ of certiorari at the Fall Term 1956, a judge of the superior court was thereafter without power to enlarge the time for serving case on appeal. State v. Walker, 245 N.C. 658, 97 S.E.2d 219, and cited cases.

The present case demonstrates the necessity for the strict enforcement of our rules relating to appeals. For example, the defendant in this case waited approximately twenty months before raising any objection to his trial and conviction or to the judgment imposed. Then when judgment was purportedly arrested on 13 November 1957, and counsel was appointed for him and he was given twenty days in which to serve his case on appeal, there is nothing before us to indicate that he made any effort to prepare or serve such case. Hence, it would seem clear that if the State had not applied to this Court for a writ of certiorari to have the order of Judge Burgwyn reviewed, the matter would not now be before us.

A careful review of the record proper reveals no prejudicial error on its face. Therefore, the order of Judge Burgwyn is held to be ineffective to arrest the original judgment. It will, therefore, remain in full force and effect as entered at the March Term 1956. However, the defendant should be given credit on his sentence for any time spent in the Wake County jail since the entry of the order purporting to arrest the judgment.

The necessity for the enforcement of our rules governing appeals in no way constitutes an encroachment on the rights of a defendant which come within the purview of our Post Conviction statute, Chapter 1083, Session Laws of 1951, codified as *292 G.S. § 15-217 through and including G.S. § 15-222, or the right to petition this Court for a writ of certiorari to review orders entered in a habeas corpus proceeding.

The order of Judge Burgwyn is

Reversed.