{
  "id": 8555260,
  "name": "STATE OF NORTH CAROLINA v. FLOYD WILSON THURGOOD",
  "name_abbreviation": "State v. Thurgood",
  "decision_date": "1971-05-26",
  "docket_number": "No. 7112SC332",
  "first_page": "405",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "cite": "269 N.C. 762",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1969,
      "opinion_index": 0
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    {
      "cite": "276 N.C. 75",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8560062
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      "year": 1969,
      "opinion_index": 0,
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        "/nc/276/0075-01"
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    {
      "cite": "172 S.E. 2d 105",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
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    {
      "cite": "7 N.C. App. 397",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550413
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      "year": 1970,
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  "last_updated": "2023-07-14T15:10:46.806740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Morris concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FLOYD WILSON THURGOOD"
    ],
    "opinions": [
      {
        "text": "HEDEICK, Judge.\nThe defendant contends that the court committed prejudicial error in denying his motion to suppress the evidence gained as a result of the search of his person. We do not agree. The evidence, although conflicting, supports the ruling of the court.\nAn appeal is an exception to the judgment, and presents the face of the record proper for review. State v. Gwyn, 7 N.C. App. 397, 172 S.E. 2d 105 (1970). The record proper consists of the bill of indictment or warrant, the defendant\u2019s plea, the verdict, and the judgment entered. State v. Gwyn, supra.\nThe bill of indictment in the instant case properly charged the defendant with the violation of G.S. 90-88.\nThe record discloses that after the defendant had changed his plea of not guilty to nolo contendere the court entered a verdict of \u201cguilty.\u201d The plea of nolo contendere may not be interposed as a matter of right, but may be accepted by the court only as a matter of grace. State v. Norman, 276 N.C. 75, 170 S.E. 2d 923 (1969). No formal record of the acceptance of the plea by the court is required, and the entry of judgment based thereon constitutes an acceptance of the plea. State v. Hicks, 269 N.C. 762, 153 S.E. 2d 488 (1967). A plea of nolo contendere empowers the judge to impose punishment as upon a plea of guilty, State v. Norman, supra, but it does not authorize or empower the judge to enter a verdict of guilty, State v. Thomas, 236 N.C. 196, 72 S.E. 2d 525 (1952), nor will such an entry support a recital in the judgment that the defendant had been \u201cfound guilty.\u201d\nIn the instant case, the defendant\u2019s plea of nolo contendere to the bill of indictment will support the prison sentence imposed. We find and hold that the defendant had a fair trial free from prejudicial error; however, for the reasons stated herein, the judgment is vacated, and the case is remanded to the superior court for the entry of proper judgment in accordance with the defendant\u2019s plea.\nVacated and remanded.\nJudges Brock and Morris concur.",
        "type": "majority",
        "author": "HEDEICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Trial Attorney Lester V. Chalmers for the State.",
      "Public Defender William S. Geimer for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FLOYD WILSON THURGOOD\nNo. 7112SC332\n(Filed 26 May 1971)\n1. Criminal Law \u00a7 84; Searches and Seizures \u00a7 2 \u2014 consent to search\nThe evidence on voir dire, although conflicting, supports the ruling by the trial court that defendant consented to a search in which heroin was found in his shirt pocket.\n2. Criminal Law \u00a7 161 \u2014 appeal as exception to judgment\nAn appeal is an exception to the judgment and presents the face of the record proper for review.\n3. Criminal Law \u00a7 157 \u2014 record proper\nThe record proper consists of the bill of indictment or warrant, the plea, the verdict and the judgment entered.\n4. Criminal Law \u00a7 25 \u2014 plea of nolo contendere\nThe plea of nolo contendere may not be interposed as a matter of right, but may be accepted by the court only as a matter of grace.\n5. Criminal Law \u00a7 25 \u2014 acceptance of plea of nolo contendere\nNo formal acceptance of a plea of nolo contendere by the court is required, and the entry of judgment based thereon constitutes an acceptance of the plea.\n6. Criminal Law \u00a7 25 \u2014 plea of nolo contendere \u2014 judgment\nWhile a plea of nolo contendere empowers the judge to impose punishment as upon a plea of guilty, it does not authorize the judge to enter a verdict of guilty and will not support a recital in the judgment that the defendant has been \u201cfound guilty.\u201d\nAppeal by defendant from Bailey, Judge, 11 January 1971 Session of Superior Court held in Cumberland County.\nThe defendant Floyd Wilson Thurgood was charged in a bill of indictment, proper in form, with the possession of a narcotic drug; to wit, heroin, in violation of G.S. 90-88.\nThe record reveals that the defendant, an indigent, represented by the Public Defender, pleaded not guilty to the bill of indictment, and after a jury had been impaneled, he moved to suppress any evidence seized as a result of the search of his person. On voir dire the court heard evidence which tended to show that police officers of the Fayetteville Police Department and officers of the State Bureau of Investigation went to premises occupied by the defendant and others for the purpose of searching for heroin. Police Officer W. A. Newsom told the defendant that he \u201cwanted to search him and Thurgood replied \u2018OK, go ahead.\u2019 \u201d Officer Newsom found a package containing heroin in the defendant\u2019s shirt pocket. The defendant denied that he gave the officer permission to search his person. After the hearing, the court found and adjudicated that the defendant consented to the search of his person, and held that the evidence seized was admissible.\nAfter the court denied the defendant\u2019s motion to suppress the evidence, he withdrew his plea of not guilty and entered a plea of nolo contendere: The court then \u201centered a verdict of guilty\u201d of possession of heroin.\nThe judgment entered by the court, in pertinent part, recites :\n\u201cIn open court, the defendant appeared for trial upon the charge or charges of possession of heroin and was represented by his attorney William Geimer and thereupon entered a plea of \u2018Nolo Contendere\u2019 to possession of heroin.\n\u201cHaving been found guilty of the offense of possession of heroin which is a violation of the law and of the grade of felony\n\u201cIt is Adjudged that the defendant be imprisoned for the term of not less than thirty (30) months nor more than sixty (60) months in the North Carolina Department of Correction.\u201d\nThe defendant appealed to this Court.\nAttorney General Robert Morgan and Trial Attorney Lester V. Chalmers for the State.\nPublic Defender William S. Geimer for defendant appellant."
  },
  "file_name": "0405-01",
  "first_page_order": 429,
  "last_page_order": 431
}