Opinion
No. 07-1306.
Filed 20 May 2008.
Pitt County No. 04CRS11216.
Appeal by defendant from order entered 11 July 2007 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 5 May 2008.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. Russell J. Hollers, III for defendant appellant.
Defendant appeals from an order adjudging him in criminal contempt for his failure to pay a fine as previously ordered by the court. As punishment, the court ordered defendant to serve fifteen days in jail "to begin immediately." Defendant, proceeding without the assistance of counsel at the hearing, gave notice of appeal in open court. The court denied his request for release pending appeal.
Defendant contends the court erred by not advising him of his right to counsel. "[C]riminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards." O'Briant v. O'Briant, 313 N.C. 432, 435, 329 S.E.2d 370, 373 (1985). A person charged with criminal contempt and facing possible incarceration has a right to counsel. State v. Wall, 49 N.C. App. 678, 679, 272 S.E.2d 152, 153 (1980).
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2007). "The record must affirmatively show that the [§ 15A-1242] inquiry was made and that the defendant, by his answers, was literate, competent, understood the consequences of his waiver, and voluntarily exercised his own free will." State v. Callahan, 83 N.C. App. 323, 324, 350 S.E.2d 128, 129 (1986), disc. review denied, 319 N.C. 225, 353 S.E.2d 409 (1987). The failure of a court to conduct this inquiry warrants a new trial. State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 805 (1986).
The present record is devoid of anything to indicate the court complied with the requirements of N.C. Gen. Stat. § 15A-1242. The State concedes that the trial court erred by failing to advise defendant of his right to counsel, and proposes that the order should be vacated and the matter remanded for a new hearing. However, because defendant has fully served the sentence imposed by the court's order, a new hearing may subject defendant to multiple punishments for the same offense, a result prohibited by the double jeopardy clauses of the United States and North Carolina Constitutions. The double jeopardy clause prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. State v. Oliver, 343 N.C. 202, 205, 470 S.E.2d 16, 18 (1996).
The order of criminal contempt is vacated.
Vacated.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).