{
  "id": 8550628,
  "name": "STATE OF NORTH CAROLINA v. EDDIE WAYNE GILLESPIE",
  "name_abbreviation": "State v. Gillespie",
  "decision_date": "1976-11-17",
  "docket_number": "No. 7625SC543",
  "first_page": "520",
  "last_page": "522",
  "citations": [
    {
      "type": "official",
      "cite": "31 N.C. App. 520"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 245,
    "char_count": 3862,
    "ocr_confidence": 0.646,
    "pagerank": {
      "raw": 4.3967351057703934e-07,
      "percentile": 0.9197854778405999
    },
    "sha256": "575346e7d065d89bdce8f585cce09fcd39f21379360885fa4d1d937b18c0d07d",
    "simhash": "1:8aafe7bd44e7d6ab",
    "word_count": 639
  },
  "last_updated": "2023-07-14T16:36:26.493722+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EDDIE WAYNE GILLESPIE"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nThe record on appeal in this appeal was settled by agreement on 21 May 1976. The North Carolina Rules of Appellate Procedure, Rule 11 (e) provides that \u201c[w]ithin 10 days after the record on appeal has been settled . . . the appellant shall present the items constituting the record on appeal to the clerk of superior court for certification.\u201d Appellant in this case waited from 21 May 1976 until 28 June 1976 to obtain the clerk\u2019s certification, a total of 38 days.\nThe time schedules set out in the rules are designed to keep the process of perfecting an appeal to the appellate division flowing in an orderly manner. Counsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process. There are generous provisions for extensions of time by the trial court if counsel can show good cause for-extension.\nThe North Carolina Rules of Appellate Procedure are mandatory. \u201cThese rules govern procedure in all appeals from the courts of the trial divisions to the courts of the appellate division; ...\u201d App. R. 1(a).\nFor violation of the rules this appeal is subject to dismissal. However, we note from the face of the record that the recitation in the judgment is inconsistent with the trial, the judge\u2019s instructions, and the verdict. The recitation in the judgment should be corrected and an amended commitment issued.\nThe bill of indictment charged defendant with the possession of marijuana with intent to sell and deliver. G.S. 90-95 (a) (1). The trial judge instructed the jury that it was to consider only the offense of possession of more than one ounce of marijuana. G.S. 90-95 (d) (4). The jury returned a verdict of guilty upon the offense submitted by the court under G.S. 90-95 (d) (4). The punishment imposed does not exceed the maximum provided for a conviction under G.S. 90-95 (d) (4). Nevertheless, the judgment and commitment recite that the defendant was found guilty \u201cof the offense of felonious possession of marijuana with intent to distribute. . . \u201d\nWe find no prejudicial error in the trial. This cause is remanded with instructions that the Clerk of Superior Court, Burke County, strike from the judgment and commitment the words \u201cwith intent to distribute\u201d appearing in the second paragraph thereof, to the end that the second paragraph of the judgment and commitment shall read: \u201cHaving been found by a jury guilty of the offense of felonious possession of marijuana which is a violation of G.S. \u201e and of the grade of felony.\u201d The said clerk is further directed to issue an amended commitment to conform with the judgment and commitment as corrected.\nRemanded with instructions.\nJudges Parker and Hedrick concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Jerry B. Fruitt, for the State.",
      "McMurray, Triggs & Hodges, by Robert E. Hodges, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EDDIE WAYNE GILLESPIE\nNo. 7625SC543\n(Filed 17 November 1976)\n1. Criminal Law \u00a7 151\u2014 appeals governed by Rules of Appellate Procedure \u2014 mandatory nature\nThe N. C. Rules of Appellate Procedure are mandatory, and a defendant\u2019s appeal is subject to dismissal for violation of the rules.\n2. Criminal Law \u00a7 137\u2014 possession of marijuana \u2014 correction of judgment and commitment to conform to verdict\nJudgment and commitment which recite that defendant was found guilty of felonious possession of marijuana with intent to distribute are corrected to conform with the verdict of guilty of possession of more than one ounce of marijuana.\nAppeal by defendant from Kirby, Judge. Judgment entered 17 February 1976 in Superior Court, Burke County. Heard in the Court of Appeals 10 November 1976.\nDefendant was tried and convicted of the felonious possession of marijuana under G.S. 90-95 (d) (4), and sentenced to a term of not less than three nor more than five years\u2019 imprisonment.\nAttorney General Edmisten, by Associate Attorney Jerry B. Fruitt, for the State.\nMcMurray, Triggs & Hodges, by Robert E. Hodges, for the defendant."
  },
  "file_name": "0520-01",
  "first_page_order": 548,
  "last_page_order": 550
}