{ "id": 8552365, "name": "IN THE MATTER OF THE IMPRISONMENT OF RICKY RAY TUTTLE", "name_abbreviation": "In re the Imprisonment of Tuttle", "decision_date": "1978-05-02", "docket_number": "No. 7710SC963", "first_page": "222", "last_page": "226", "citations": [ { "type": "official", "cite": "36 N.C. App. 222" } ], "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": "232 S.E. 2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": -1 }, { "cite": "291 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559431, 8559403, 8559442, 8559415, 8559454 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc/291/0716-03", "/nc/291/0716-01", "/nc/291/0716-04", "/nc/291/0716-02", "/nc/291/0716-05" ] }, { "cite": "220 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "28 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547629 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc-app/28/0198-01" ] }, { "cite": "158 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573858 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0517-01" ] }, { "cite": "187 S.E. 560", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626893 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0447-01" ] }, { "cite": "240 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "801" } ], "opinion_index": 0 }, { "cite": "294 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572801 ], "year": 1978, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0320-01" ] }, { "cite": "231 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550333 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0309-01" ] }, { "cite": "218 S.E. 2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551376 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0167-01" ] }, { "cite": "214 S.E. 2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549498 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0063-01" ] }, { "cite": "211 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552264 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0484-01" ] } ], "analysis": { "cardinality": 420, "char_count": 8180, "ocr_confidence": 0.808, "pagerank": { "raw": 1.0645481284172307e-07, "percentile": 0.5580504886578329 }, "sha256": "a589d26ea7c30b745cd14fccdb1acbece124e03848030c466fa58b1c009c64c0", "simhash": "1:ed25c26136b5c01d", "word_count": 1384 }, "last_updated": "2023-07-14T17:02:41.791978+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and WEBB concur." ], "parties": [ "IN THE MATTER OF THE IMPRISONMENT OF RICKY RAY TUTTLE" ], "opinions": [ { "text": "PARKER, Judge.\nArticle 3A of G.S. Ch. 148 was repealed and replaced by Article 3B effective 1 October 1977. In this opinion reference will be made to the statute which was in effect at the time the judgment of imprisonment here under attack was imposed.\nBy definition in G.S. 148-49.2, a \u201cyouthful offender\u201d was a person under the age of 21 at the time of conviction, and a \u201ccommitted youthful offender\u201d was one committed to the custody of the Secretary of Correction under provisions of Art. 3A of G.S. Ch. 148. Sentencing of a youthful offender was controlled by G.S. 148-49.4, which provided that \u201c[i]f the court shall find that the youthful offender will not derive benefit from treatment and supervision pursuant to this Article, then the court may sentence the youthful offender under any other applicable penalty provision.\u201d Interpreting this language, we held in State v. Mitchell, 24 N.C. App. 484, 211 S.E. 2d 645 (1975), that the trial judge could not sentence a youthful offender as an older criminal without expressly finding he would receive no benefit from treatment and supervision as a \u201ccommitted youthful offender,\u201d although such finding need not be accompanied by supporting reasons. This interpretation was followed in State v. Jones, 26 N.C. App. 63, 214 S.E. 2d 779 (1975), State v. Worthington, 27 N.C. App. 167, 218 S.E. 2d 233 (1975), and State v. Matre, 32 N.C. App. 309, 231 S.E. 2d 688 (1977).\nIn the present case, Judge Albright, in imposing the sentence of imprisonment on 18 March 1975 (just one month after our decision in State v. Mitchell, supra), did expressly make the requisite \u201cno benefit\u201d finding. The only question is whether the finding came too late. We hold that it did not, and accordingly we reverse Judge Smith\u2019s order vacating the sentence imposed.\nIt has long been settled law in this State that \u201cuntil the expiration of the term the orders and judgments of the court are in fieri, and the judge has the power, in his discretion, to make such changes and modifications in them as he may deem wise and appropriate for the administration of justice.\u201d State v. Hill, 294 N.C. 320, 329, 240 S.E. 2d 794, 801 (1978); accord, State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936). This is true notwithstanding notice of appeal has been given. State v. Belk, 272 N.C. 517, 158 S.E. 2d 335 (1968). In the present case the sentencing judge made the \u201cno benefit\u201d finding on the same day and virtually at the same time that judgment and notice of appeal were entered. The term of court had not expired, the judgment remained in fieri despite the notice of appeal, and the \u201cno benefit\u201d finding was effectual.\nRespondent\u2019s contention that G.S. 148-49.4 must be construed to mean that unless the sentencing judge first expressly made the \u201cno benefit\u201d finding he lacked all power to sentence the youthful offender under any other applicable penalty provision exalts form over substance. All that G.S. 148-49.4 required was that the sentencing judge make the \u201cno benefit\u201d finding at a time when he still retained control of the sentencing process. This was done by Judge Albright in the present case. Judge Smith\u2019s order vacating the judgment entered by Judge Albright on 18 March 1975 and returning respondent Tuttle to the Superior Court in Forsyth County for resentencing is\nReversed.\nJudges VAUGHN and WEBB concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Edmisten by Assistant Attorney General Ben G. Irons II for the State.", "A. L. Sherk for respondent Tuttle." ], "corrections": "", "head_matter": "IN THE MATTER OF THE IMPRISONMENT OF RICKY RAY TUTTLE\nNo. 7710SC963\n(Filed 2 May 1978)\nCriminal Law \u00a7\u00a7 134.4, 144\u2014 youthful offender \u2014 notice of appeal \u2014 subsequent finding of no benefit as \u201ccommitted youthful offender\u201d\nThe trial judge\u2019s finding that defendant would receive no benefit from treatment and supervision as a \u201ccommitted youthful offender\u201d was effectual where it was entered before the term expired and on the same day and immediately after judgment and notice of appeal were entered, since the judgment remained in fieri until the expiration of the term despite the notice of appeal and could be modified in the trial judge\u2019s discretion.\nOn writ of certiorari to review order entered by Donald, L. Smith, Judge. Order entered 22 September 1977 in Superior Court, WAKE County. Heard in the Court of Appeals 29 March 1978.\nRespondent Ricky Ray Tuttle was tried and convicted of second degree rape at the 17 March 1975 Session of Superior Court in Forsyth County. At the time of his conviction, Tuttle was under 21 years of age. The trial judge, Judge W. Douglas Albright, pronounced judgment in open court on 18 March 1975 sentencing Tuttle to prison for a term of not less than forty nor more than sixty years. Immediately after this judgment was announced, respondent Tuttle, through his attorney, gave oral notice of appeal in open court.\nAfter the oral notice of appeal was given, and while Tuttle and his attorney were still before him in open court, the trial judge made the following finding which he ordered attached to the judgment:\nDue to the facts and circumstances of this case, which the Court considers aggravated, and due to the background of the defendant insofar as he exhibits deviant sexual behavior, the Court finds that the defendant will not derive benefit from treatment and supervision pursuant to General Statute 148, Article 3-A, and, therefore, the Court specifically does not sentence the defendant as a committed youthful offender under the terms and provisions of that article.\nIn compliance with the judge\u2019s directive, this finding was attached to the written judgment, the judgment and the attachment thereto both being dated 18 March 1975 and signed by the trial judge.\nOn appeal, no argument was presented challenging the \u201cno benefit\u201d finding attached to the judgment. This Court found no error in the trial or in the judgment imposed, State v. Tuttle, 28 N.C. App. 198, 220 S.E. 2d 630 (1975), and our Supreme Court denied petition for certiorari. 291 N.C. 716, 232 S.E. 2d 207 (1977).\nThe present proceeding was commenced in August 1977 when Tuttle filed a petition for writ of habeas corpus in the Superior Court in Wake County. He contended his imprisonment was illegal because the trial judge had sentenced him to prison without having first made the finding required by G.S. 148-49.4 that he would not derive benefit from treatment and supervision as a \u201ccommitted youthful offender\u201d under Art. 3A of G.S. Ch. 148. He further contended that after notice of appeal was given the trial judge was deprived of all further jurisdiction and thereafter had no power to make the finding.\nThe writ of habeas corpus was issued. After a hearing on return of the writ, Judge Donald L. Smith entered an order finding the facts as to what had occurred when Tuttle was sentenced. On the basis of these findings, Judge Smith concluded as follows:\n1. That after notice of appeal was entered, the attempt to correct the voidable judgment by making the \u201cno benefit\u201d finding of fact was erroneous and beyond the power of the trial court;\n2. That the presiding judge had no authority to make any finding of fact after notice of appeal was entered;\n3. That the \u201cno benefit\u201d finding must be made prior to the entry of a judgment or at the time thereof to indicate that the Court considered a committed youthful offender status as a sentencing option at the time of judgment as is required by Article 3A of Chapter 148 of the General Statutes of North Carolina.\n4. That entry of the \u201cno benefit\u201d finding after judgment does not indicate that committed youthful offender status was considered prior to or at the time of judgment.\n5. That the judgment entered on March 18, 1975 by the Honorable W. Douglas Albright should be vacated and the defendant, Ricky Ray Tuttle, should be returned to Forsyth County Superior Court for resentencing.\nIn accord with these conclusions, Judge Smith ordered that the judgment of imprisonment imposed on 18 March 1975 by Judge Albright be vacated and that Tuttle be returned to the Superior Court in Forsyth County for resentencing. We granted the State\u2019s petition for certiorari to review Judge Smith\u2019s order and stayed the order pending our review.\nAttorney General Edmisten by Assistant Attorney General Ben G. Irons II for the State.\nA. L. Sherk for respondent Tuttle." }, "file_name": "0222-01", "first_page_order": 250, "last_page_order": 254 }