{
  "id": 8548222,
  "name": "STATE OF NORTH CAROLINA v. JOHN Q. TREADWAY",
  "name_abbreviation": "State v. Treadway",
  "decision_date": "1971-08-04",
  "docket_number": "No. 713SC290",
  "first_page": "167",
  "last_page": "169",
  "citations": [
    {
      "type": "official",
      "cite": "12 N.C. App. 167"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "395 U.S. 238",
      "category": "reporters:federal",
      "reporter": "U.S.",
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      "weight": 3,
      "year": 1969,
      "opinion_index": 0,
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    {
      "cite": "180 S.E. 2d 29",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
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    {
      "cite": "10 N.C. App. 553",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554907
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      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/10/0553-01"
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  "analysis": {
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  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Brock and Morris concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHN Q. TREADWAY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe judgment in this case was signed on 5 November 1970. Notice of appeal to this Court was given on the same date. The record on appeal does not indicate that the court fixed the time for the defendant to prepare and serve the case on appeal upon the solicitor; therefore, G.S. 1-282, allowing the appellant fifteen days in which to prepare and serve the case on appeal, was applicable. On 11 December 1970, the trial judge signed an \u201cOrder for Extension of Time\u201d which, in pertinent part, reads as follows:\n\u201c[T]hat the defendants be allowed an additional 30 days to prepare and serve and docket their case on appeal and the State be allowed 30 days thereafter to serve counter-case.\u201d\nG.S. 1-282 requires that \u201c[t]he initial order of extension must be entered prior to expiration of the statutory time for service of the case on appeal.\u201d Obviously, the \u201cextension of time\u201d dated 11 December 1970 was ineffective.\nOn 5 January 1971, defendant\u2019s counsel and the solicitor entered into a stipulation as to what constituted the record on appeal. The record on appeal was docketed in this Court on 8 March 1971.\nThe appeal is subject to dismissal for failure of the appellant to docket the record on appeal within 90 days from entry of the judgment as required by Rule 5 of the Rules of Practice of this Court.\nThe defendant, by his one assignment of error, contends that the court committed error by accepting the defendant\u2019s plea of nolo contendere and entering judgment thereon without first conducting a hearing and making a finding and an adjudication that the plea was understandingly and voluntarily entered. In the recent case of State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971), Judge Brock, in applying the rule laid down in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S.Ct. 1709 (1969), said: \u201c[W]e hold that where a defendant has entered a plea of guilty, or a plea of nolo contendere, it must affirmatively appear in the record that he did so understandingly and voluntarily.\u201d\nFrom the record before us, it does not affirmatively appear that the court made any inquiry, finding or adjudication that the defendant\u2019s plea was understandingly and voluntarily entered. Therefore, the defendant\u2019s assignment of error is sustained, and the defendant\u2019s plea and the judgment entered thereon are vacated and the case is remanded to the superior court where the defendant will be entitled to replead to the bill of indictment.\nVacated and remanded.\nJudges Brock and Morris concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan and Staff Attorney Walter S. Ricks III for the State.",
      "Paul and Keenan by James Keenan for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHN Q. TREADWAY\nNo. 713SC290\n(Filed 4 August 1971)\n1.Criminal Law \u00a7 154\u2014 service of case on appeal \u2014 extension of time\nOrder of the trial court extending the time for defendant to serve his case on appeal on the solicitor was ineffective where it was entered after expiration of the 15 days allowed by statute in a case in which the trial court originally fixed no time for service of the case on appeal. G.S. 1-282.\n2. Criminal Law \u00a7 155.5\u2014 failure to docket record on appeal in apt time\nAppeal is subject to dismissal for failure of appellant to docket the record on appeal within 90 days from entry of the judgment appealed from. Court of Appeals Rule No. 5.\n3. Criminal Law \u00a7 25\u2014 plea of nolo contendere \u2014 failure of court to determine that plea was voluntary\nDefendant is entitled to have his plea of nolo contendere vacated and to replead to the charge against him where the record fails to show affirmatively that the court made any inquiry, finding or adjudication that defendant\u2019s plea was understandingly and voluntarily entered.\nAppeal by defendant, John Q. Treadway, from James, Judge, 5 November 1970 Session of Carteret Superior Court.\nThe defendant was charged in a bill of indictment, proper in form, with possession of narcotic drugs for the purpose of sale, in violation of G.S. 90-88. The defendant, represented by privately employed counsel, entered a plea of nolo contendere. From a judgment imposing a prison sentence of eighteen months, the defendant appealed.\nAttorney General Robert Morgan and Staff Attorney Walter S. Ricks III for the State.\nPaul and Keenan by James Keenan for defendant appellant."
  },
  "file_name": "0167-01",
  "first_page_order": 193,
  "last_page_order": 195
}