{ "id": 8527952, "name": "ROGER EDWIN FLORENCE v. WILLIAM S. HIATT, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES", "name_abbreviation": "Florence v. Hiatt", "decision_date": "1991-02-05", "docket_number": "No. 891SC1257", "first_page": "539", "last_page": "542", "citations": [ { "type": "official", "cite": "101 N.C. App. 539" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "79 ALR2d 866", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "290 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521825 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0040-01" ] }, { "cite": "227 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "290 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562843 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0628-01" ] }, { "cite": "229 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549682 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0379-01" ] }, { "cite": "135 S.E. 771", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "opinion_index": 0 }, { "cite": "192 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626062 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/nc/192/0668-01" ] }, { "cite": "153 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1930, "opinion_index": 0 }, { "cite": "198 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619177 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/198/0728-01" ] }, { "cite": "34 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603976 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0217-01" ] }, { "cite": "97 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625161 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0169-01" ] }, { "cite": "127 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569760 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0634-01" ] }, { "cite": "100 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1957, "pin_cites": [ { "page": "50" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "246 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628148 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0680-01" ] } ], "analysis": { "cardinality": 470, "char_count": 9018, "ocr_confidence": 0.776, "pagerank": { "raw": 6.552548484168574e-08, "percentile": 0.40156568973712364 }, "sha256": "3d610199396b7ac54c20c779ba89fdd76d32eaa20c25bc0ea2ac8176452341c4", "simhash": "1:277a605ea5a3eeec", "word_count": 1513 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Parker concur." ], "parties": [ "ROGER EDWIN FLORENCE v. WILLIAM S. HIATT, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES" ], "opinions": [ { "text": "JOHNSON, Judge.\nOn 7 September 1988, plaintiff was cited for exceeding 35 m.p.h. in a 35 m.p.h. zone. He did not appear to answer the charge on the scheduled court date and the Dare County Clerk\u2019s Office sent notice of failure to appear to the Division of Motor Vehicles (DMV), which, pursuant to G.S. \u00a7 20-24.1, revoked plaintiff\u2019s driving privilege for failure to appear and answer the charge. The revocation was effective as of 1 January 1989. Plaintiff complied with the revocation on 6 February 1989.\nOn 27 January 1989, plaintiff was cited for a safe movement violation and was also charged with driving while license revoked. On 9 May 1989, plaintiff appeared before the Dare County District Court and entered a plea of guilty to the offense of driving without being licensed as a driver by the Division of Motor Vehicles in violation of G.S. \u00a7 20-7, in lieu of driving while license revoked, and also entered a plea admitting liability to an unsafe movement violation. Judge Parker found plaintiff guilty of operating a motor vehicle without a license. The judgment of the court was: \u201cPrayer for judgment continued upon the condition that he not violate any motor vehicle laws and make a $75.00 contribution to the school board.\u201d Upon receiving notice of Judge Parker\u2019s order, DMV revoked plaintiff\u2019s license for one year, pursuant to G.S. \u00a7 20-28.1 which mandates the revocation of a driver\u2019s license when he is convicted of a moving violation committed while driving during a period of revocation. The revocation was to be effective as of 18 June 1989. Plaintiff obtained a temporary restraining order against DMV on 21 June 1989. A permanent injunction enjoining DMV from suspending or revoking the plaintiff\u2019s driving privileges as a result of Judge Parker\u2019s order of 9 May 1989 was entered by Judge Herbert Small on 12 July 1989. Defendant DMV appeals.\nThe issue on appeal is whether the conditional language in Judge Parker\u2019s order renders the putative \u201cprayer for judgment continued\u201d a final conviction. If the order is construed as a final judgment from which appeal can be made, then DMV\u2019s revocation of plaintiff\u2019s license is valid under G.S. \u00a7 20-28.1. If Judge Parker\u2019s order is construed as a true prayer for judgment continued then there will have been no final judgment and DMV has no authority to revoke plaintiff\u2019s license.\nDefendant\u2019s first argument on appeal is that the trial court lacked jurisdiction to review a mandatory revocation undertaken pursuant to G.S. \u00a7 20-28.1. This argument misses the issue. Here we are not concerned with whether the court has jurisdiction to review a mandatory revocation imposed when a driver is convicted of a moving violation while his license is suspended but whether the order entered in this case is a final conviction which can support a mandatory revocation at all. Defendant properly states the relevant issue in its second argument when it contends that Judge Parker\u2019s judgment constitutes a final conviction for purposes of G.S. \u00a7 20-24(c) because the condition that plaintiff pay $75.00 to the school board imposed a condition amounting to punishment, making the order in the nature of a final judgment.\nThe Superior Courts of North Carolina have the inherent power to designate the manner by which their judgments shall be executed. See State v. Griffin, 246 N.C. 680, 100 S.E.2d 49 (1957). Following a conviction by verdict or plea the court may (1) pronounce judgment and place it in immediate execution, (2) pronounce judgment and suspend or stay its execution, (8) continue prayer for judgment. Id. at 682, 100 S.E.2d at 50. The effect of a prayer for judgment continued is that there is no judgment and the defendant has no right to appeal. State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962); Barbour v. Scheidt, Comr. of Motor Vehicles, 246 N.C. 169, 97 S.E.2d 855 (1957). Where a prayer for judgment continued is imposed with no terms or conditions, the judgment may be continued from session to session without defendant\u2019s consent. State v. Graham, 225 N.C. 217, 34 S.E.2d 146 (1945). But a prayer for judgment continued which contains conditions may not be imposed over defendant\u2019s objections. State v. Jaynes, 198 N.C. 728, 153 S.E.2d 410 (1930); State v. Burgess, 192 N.C. 668, 135 S.E. 771 (1926). If conditions are imposed and the defendant does not object, he waives his right to appeal on the grounds that it was not in accord with due process of law. Griffin, 246 N.C. 680, 100 S.E.2d 49. However, \u201cwhen the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment (fine or imprisonment) the order is in the nature of a final judgment, from which the defendant may appeal.\u201d Id. at 683, 100 S.E.2d at 51.\nJudge Parker\u2019s order granted a prayer for judgment continued on condition that plaintiff not violate any motor vehicle laws and that he make a $75.00 contribution to the school board. In State v. Cheek, 31 N.C. App. 379, 229 S.E.2d 227 (1976), a prayer for judgment was continued on an assault charge upon the condition that the defendant not attempt to escape from prison or break any state or federal law. This Court held that the condition did not amount to punishment because the defendant, as a citizen, was already obligated to obey the law, thus the judgment was not a final judgment and the defendant had no right to appeal from it. We conclude that the condition in the case sub judice, that defendant not violate any motor vehicle laws, is not punishment and therefore does not make the judgment at issue a final judgment.\nThe question still remains whether the condition \u201cthat he make a $75.00 contribution to the school board\u201d constitutes punishment that would render the judgment a final conviction. We hold that it is an invalid condition and is unenforceable.\nFines are a pecuniary punishment extracted by the State. They are a permitted form of punishment under the state constitution. N.C. Const. art. XI, \u00a7 1. See Shore v. Edmisten, Atty. General, 290 N.C. 628, 227 S.E.2d 553 (1976). Article IX, \u00a7 7 of the North Carolina Constitution provides that the fines collected for any breach of the penal laws shall be used exclusively for the benefit of the public schools. \u201c[A]ny judgment of a trial judge which seeks to direct payment of a fine anywhere other than to the counties for the use of the public schools is unconstitutional.\u201d Shore, 290 N.C. at 633, 227 S.E.2d at 558. Restitution, on the other hand, is compensation to a specific aggrieved party. An aggrieved party is one who has been damaged or has sustained loss caused by the defendant arising out of the offense for which he has been convicted. State v. Wilburn, 57 N.C. App. 40, 290 S.E.2d 782 (1982).\nWe find that the condition in Judge Parker\u2019s order that plaintiff make a contribution to the school board is unenforceable surplusage. It is not restitution because the school board is not an aggrieved party. It is not a fine because it is directed to an entity other than the county for use by the public schools.\nWe therefore hold that Judge Parker\u2019s order of 9 May 1989 is a true prayer for judgment continued. As such it cannot operate as a final conviction which would require or allow DMV to revoke plaintiff\u2019s license under G.S. \u00a7 20-28.1. The order enjoining DMV from suspending or revoking plaintiff\u2019s driving privilege is\nAffirmed.\nJudges Eagles and Parker concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Mabel Y. Bullock, for defendant-appellant.", "Aycock, Spence & Butler, by W. Mark Spence, for plaintiff-appellee." ], "corrections": "", "head_matter": "ROGER EDWIN FLORENCE v. WILLIAM S. HIATT, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES\nNo. 891SC1257\n(Filed 5 February 1991)\nAutomobiles and Other Vehicles \u00a7 68 (NCI4th)\u2014 prayer for judgment continued \u2014 conditions\u2014judgment not rendered appealable\nThe trial court\u2019s prayer for judgment continued for operating a vehicle without a license upon the condition that plaintiff not violate any motor vehicle laws and make a $75 contribution to the school board was a true prayer for judgment continued and not a final judgment which would allow DMV to revoke plaintiff\u2019s license pursuant to N.C.G.S. \u00a7 20-28.1 for a moving violation committed while his license was revoked, since plaintiff was already obligated to obey the motor vehicle laws and that condition thus was not a punishment, and the $75 \u201cdonation\u201d was not restitution because the school board was not an aggrieved party, was not a fine because it was directed to an entity other than the county for use by the public schools, but was unenforceable surplusage.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 134, 148; Forfeitures and Penalties \u00a7 68.\nWhat amounts to conviction or adjudication of guilt for purposes of refusal, revocation, or suspension of automobile driver\u2019s license. 79 ALR2d 866.\nAPPEAL by defendant from judgment entered 12 July 1989 by Judge Herbert Small in Dare County Superior Court. Heard in the Court of Appeals 25 October 1990.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Mabel Y. Bullock, for defendant-appellant.\nAycock, Spence & Butler, by W. Mark Spence, for plaintiff-appellee." }, "file_name": "0539-01", "first_page_order": 567, "last_page_order": 570 }