Summary
In State v. Walker, 277 N.C. 403, 177 S.E.2d 868 (1970), the Supreme Court of North Carolina specifically held that a defendant is not entitled to credit for time spent in custody awaiting trial, and that G.S. 15-186.1 has no retroactive effect.
Summary of this case from Pinyatello v. StateOpinion
No. 6
Filed 16 December 1970
1. Criminal Law 138 — credit on prison sentence — confinement awaiting trial In North Carolina credit is given for time served under a previous sentence for the same conduct, but a defendant is not entitled to credit for time spent in custody awaiting trial.
2. Criminal Law 138 — credit on prison sentence — confinement under reversed felony conviction A defendant whose conviction on a felony charge was reversed by the Court of Appeals was not entitled to deduct the time spent in custody under the felony charge from the sentence of imprisonment received in his subsequent trial on a lesser included offense of the felony, where the time spent in custody under the felony conviction resulted solely from his failure to post appearance bond pending his appeal to the Court of Appeals.
3. Criminal Law 138 — credit on prison sentence — confinement for mental evaluation A defendant was not entitled to receive credit on his sentence for the sixty days he was required to spend under observation in a State hospital for the purpose of determining whether he was mentally competent to stand trial.
4. Criminal Law 138 — credit on prison sentence — effect of 1969 statute The 1969 statute which gives a defendant credit on his prison sentence for the time spent in custody pending appeal is not retroactive, nor does the statute apply when the sentence of imprisonment is reversed. G.S. 15-186.1.
ON certiorari to the Court of Appeals to review its decision upholding judgment of Bowman, S.J., 1 September 1969 Session, DURHAM Superior Court.
John C. Randall, Attorney for the Defendant Appellant.
Robert Morgan, Attorney General; Edward L. Eatman, Jr., Staff Attorney for the State.
Justice HIGGINS dissenting.
Chief Justice BOBBITT dissenting.
Justice SHARP joins in dissenting opinion of Chief Justice Bobbitt.
The facts in this case occurred in the following chronological order:
1. Defendant was arrested 22 April 1968 on a warrant charging assault with intent to commit rape and immediately released on bond until his preliminary hearing on 7 May 1968.
2. At the preliminary hearing defendant was bound over to superior court and a new bond set. He was held in custody awaiting trial from 7 May 1968 until 13 June 1968 when he posted the required appearance bond and was released.
3. On 14 June 1968, a question having been raised as to defendant's ability to plead to the bill of indictment, the presiding superior court judge committed defendant to Cherry Hospital for a period of sixty days for observation after which he was again released on the appearance bond which he had previously posted on 13 June 1968.
4. On 20 November 1968 defendant was tried and convicted of assault with intent to commit rape and sentenced to prison for a term of five to seven years. He gave notice of appeal to the Court of Appeals and appearance bond was again fixed. He was not committed to prison to serve this sentence but remained in custody from 20 November 1968 until 4 February 1969 at which time he posted the required appearance bond and was released.
5. On 30 April 1969 defendant's conviction of assault with intent to commit rape was reversed by the Court of Appeals, 4 N.C. App. 478, 167 S.E.2d 18, and a new trial ordered on the lesser included offense of assault on a female, he being a male person.
6. On 2 September 1969 defendant tendered a plea of nolo contendere in the superior court to the charge of assault on a female, he being a male person (G.S. 14-33 as amended by Chapter 618, Session Laws 1969) and was sentenced to a term of not less than three nor more than six months. Defendant requested the trial judge to allow credit on the sentence imposed for all time previously spent in custody. The motion was denied, and defendant appealed to the Court of Appeals which found no error, 7 N.C. App. 548, 172 S.E.2d 881, opinion filed 1 April 1970. Commitment was thereafter issued by the Clerk of Durham Superior Court, and defendant allegedly served twenty-nine days of his three to six months sentence pending his petition to this Court for certiorari. We allowed certiorari to review decision of the Court of Appeals, and on 18 May 1970 ordered the Director of the Department of Corrections to release defendant from custody pending our decision, defendant having executed a bond in the sum of $1,000.00 conditioned upon his appearance in the Durham Superior Court to receive and abide by further orders of the court following decision here.
The record contains the following stipulations:
"1. That the defendant appellant in this case was in custody from May 7, 1968 until June 13, 1968 in lieu of bond.
"2. That the defendant appellant in this case was in custody from June 14, 1968 until August 14, 1968 under an order for mental and psychiatric observation.
"3. That the defendant appellant in this case was in custody from November 20, 1968, the date of his first trial, until February 4, 1969 in lieu, of bond pending his appeal."
[1, 2] In North Carolina credit is given for time served under a previous sentence for the same conduct, but a defendant is not entitled to credit for time spent in custody awaiting trial. State v. Virgil, 276 N.C. 217, 172 S.E.2d 281 (1970). Until the date of his commitment on or about 21 April 1970, following certification to Durham Superior Court of the decision of the Court of Appeals filed 1 April 1970 and reported in 7 N.C. App. 548, 172 S.E.2d 881, defendant's status was that of a person under indictment awaiting trial in default of bond and not that of a prisoner serving a sentence. "During this period, while in custody in default of bond, defendant was not serving a sentence as punishment for the conduct charged in the bill of indictment." State v. Weaver, 264 N.C. 681, 142 S.E.2d 633 (1965).
The sixty days defendant spent in Cherry Hospital under observation was ordered before any trial had been held for the purpose of determining whether defendant was mentally competent to plead to the indictment and to assist counsel in the conduct of his defense. This order was for the protection of defendant's rights and was properly regarded by the Court of Appeals as time spent in custody awaiting trial. In no sense did it constitute service of a sentence because no trial had been conducted and no sentence pronounced.
In addition to Virgil and Weaver, heretofore cited, the following authorities are in accord with the views above expressed: Williams v. State, 269 N.C. 301, 152 S.E.2d 111 (1967); State v. Foster, 271 N.C. 727, 157 S.E.2d 542 (1967); State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Stafford, 274 N.C. 519, 164 S.E.2d 371 (1968); North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). See Annotation, 35 A.L.R.2d 1283.
Defendant contends, however, that by virtue of G.S. 15-186.1 he is entitled to credit for time spent in custody (November 20, 1968 to February 4, 1969) pending appeal of his felony conviction to the Court of Appeals.
Chapters 266 and 888 of the 1969 Session Laws (codified as G.S. 15-186.1) were ratified, respectively, on April 22, 1969, and June 16, 1969. Defendant's last day in custody "in lieu of bond pending appeal" was February 4, 1969. Thus these enactments designed to give credit on a prison sentence for all time spent in custody pending appeal afford defendant no relief because (1) they are not retroactive and (2) they are by their language not applicable to this case in that defendant's sentence of imprisonment was reversed rather than affirmed by the Court of Appeals, 4 N.C. App. 478, 167 S.E.2d 18. Hence, G.S. 15-186.1 does not apply.
Defendant is entitled to credit for time served on the three to six months sentence following commitment (said to be twenty-nine days) and nothing more. All other time in dispute was simply time spent in custody in lieu of bond awaiting trial, or time spent in custody in lieu of bond pending appeal for which credit is not authorized by G.S. 15-186.1.
The following language appears in State v. Weaver, supra: "From the pronouncement of judgment . . . until said judgment was vacated . . . defendant's de facto status was that of a prisoner serving a sentence." This language is entirely consistent with the views expressed here because Weaver was committed to State's Prison to serve his sentence on May 9, 1963 — the same day on which judgment was pronounced. Thus he was serving his sentence and was neither in custody in lieu of bond awaiting trial nor in custody in lieu of bond pending appeal. Not so here. In this case defendant simply failed to make bond and obtain his release pending appeal of his felony conviction. As a result he remained in Durham County Jail from November 20, 1968, to February 4, 1969, when bail was posted and defendant was released. His release on bond at that time took place nearly three months prior to reversal of his felony conviction by the Court of Appeals on 30 April 1969. These facts conclusively show that defendant was in custody in default of bail pending appeal rather than in custody serving the felony sentence.
For the reasons stated, the decision of the Court of Appeals is
Affirmed.