{
  "id": 8526412,
  "name": "IN THE MATTER OF: TALTON GALLIMORE, JR. RESENTENCING HEARING",
  "name_abbreviation": "In re Gallimore",
  "decision_date": "1982-11-02",
  "docket_number": "No. 8222SC145",
  "first_page": "338",
  "last_page": "341",
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      "cite": "168 S.E. 2d 39",
      "category": "reporters:state_regional",
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      "cite": "270 S.E. 2d 113",
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    {
      "cite": "255 S.E. 2d 299",
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      "reporter": "S.E.2d",
      "year": 1979,
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    {
      "cite": "41 N.C. App. 552",
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      "reporter": "N.C. App.",
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      "cite": "170 S.E. 2d 355",
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      "reporter": "S.E.2d",
      "year": 1969,
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    {
      "cite": "6 N.C. App. 534",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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  "last_updated": "2023-07-14T18:55:54.350150+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Martin and WHICHARD concur."
    ],
    "parties": [
      "IN THE MATTER OF: TALTON GALLIMORE, JR. RESENTENCING HEARING"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendant first attacks the sentence on the grounds that it was an indefinite indeterminate sentence and that there was no difference between the minimum and maximum periods. An indeterminate sentence is one where the court does not fix duration but only fixes maximum and minimum limits. Black\u2019s Law Dictionary 694 (5th ed. 1979).\nUnder 6.S. 148-42, which was in effect at defendant\u2019s original sentencing, trial judges were \u201cauthorized in their discretion in sentencing prisoners to imprisonment to commit the prisoner to the custody of the Commissioner of Correction for a minimum and maximum term.\u201d\nBut G.S. 148-42 was repealed in 1977. See, 1977 N.C. Sess. Laws Ch. 711, \u00a7 33. The law that replaced it was enacted that same year and was effective when defendant was resentenced in 1981. As a result, G.S. 15A-1351(b), and not G.S. 148-42, governed the resentence.\nApplication of the more recent statute in effect when defendant was resentenced is not unlike the facts and reasoning of State v. Mitchell, 6 N.C. App. 534, 170 S.E. 2d 355 (1969). In Mitchell, the court held that a defendant was entitled to be sentenced under an amended statute as it read at the time of sentencing, even though the crime was committed prior to the effective date of the amendment. Although Mitchell is not directly on point with this case, we find enough similarities to apply G.S. 15A-1351(b) to this case.\nG.S. 15A-1351(b) requires only the imposition of a maximum term, with the statement of a minimum term as optional. The sentencing judge may also state that a term constitutes both the minimum and maximum terms.\nThe sentences imposed in this case are correct under G.S. 15A-1351(b). They both contain a maximum term which is required. Even if they do not contain a minimum term it is not error. Finally, the fact that the two terms in each sentence are equal is acceptable as the judge could have seen them as both the minimum and maximum.\nOn defendant\u2019s second assignment of error, we agree with the State that the court correctly refused to grant a continuance to allow the defendant to obtain the testimony of Central Prison Warden Sam Garrison. Before a continuance of the sentencing hearing will be granted the defendant must show \u201cgood cause.\u201d G.S. 15A-1334(a). That determination is within the trial judge\u2019s discretion. State v. McLaurin, 41 N.C. App. 552, 255 S.E. 2d 299 (1979), cert. denied, 300 N.C. 560, 270 S.E. 2d 113 (1980).\nWe find no abuse of discretion here where defendant had the benefit of an affidavit by the deputy warden. That affidavit showed that his prison record had been good, and that he was in poor health. Garrison\u2019s affidavit would not have added information important enough to warrant a continuance.\nFinally, defendant finds error in that the 1981 resentence was similar to his original sentence. We find no error on this point because the resentence was within G.S. 15A-1331(a)(3), which applies no matter when a defendant\u2019s guilt was determined. It states \u201c[t]he criminal judgment against a person . . . may ... include a sentence in accordance with the provisions of this Article to one or a combination of the following alternatives . . . [o]ther punishment authorized or required by law.\u201d There is no error since the resentence was authorized by law.\nAffirmed.\nJudges Martin and WHICHARD concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Walter M. Smith, for the State.",
      "Barnes, Grimes and Bunce, by Jerry B. Grimes, for defendant-appe llant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: TALTON GALLIMORE, JR. RESENTENCING HEARING\nNo. 8222SC145\n(Filed 2 November 1982)\n1. Criminal Law \u00a7 139\u2014 minimum and maximum terms \u2014 statute in effect at resentencing\nThe statute in effect at the time of defendant\u2019s resentencing, G.S. 15A-1351(b), applied to defendant\u2019s resentencing rather than the statute in effect at the time the crimes were committed, former G.S. 148-42.\n2. Criminal Law \u00a7 139\u2014 same maximum and minimum terms \u2014sentences not improper\nSentences of \u201cten years nor more than ten years\u201d and \u201cforty to forty years\u201d were proper under G.S. 15A-1351(b) since the statute requires only the imposition of a maximum term with a minimum term being optional, and the fact that the two terms in each sentence are equal is acceptable as the judge could have seen them as both the minimum and maximum.\n3. Criminal Law \u00a7 138\u2014 refusal to continue resentencing hearing \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in refusing to grant a continuance of defendant\u2019s resentencing hearing to permit defendant to obtain the testimony of the warden of Central Prison where defendant had the benefit of an affidavit by the deputy warden which showed that his prison record had been good and that he was in poor health, and the warden\u2019s affidavit would not have added information important enough to warrant a continuance. G.S. 15A-1334(a).\n4. Criminal Law \u00a7 138.11\u2014 resentence similar to original sentence\nThe fact that defendant\u2019s resentence was similar to .his original sentence was not error where the resentence was authorized by law. G.S. 15A-1331(a)(3).\nAPPEAL by defendant from Mills, Judge. Sentence entered 28 August 1981 in Superior Court, Davidson County. Heard in the Court of Appeals 15 September 1982.\nDefendant was convicted in 1967 of (1) conspiracy to commit larceny and (2) breaking and entering and larceny. He was sentenced to 7 to 10 years on the conspiracy charge and given a consecutive sentence of 7 to 10 years on the other charge. In 1968, he was convicted of conspiracy to commit murder, damaging an auto by the use of high explosives and damaging an occupied dwelling house by use of high explosives. He was given consecutive terms of 10, 20 and 40 years, respectively. The Supreme Court later reversed the conviction for damage to an auto. See State v. Conrad, 275 N.C. 342, 168 S.E. 2d 39 (1969).\nPursuant to a petition by defendant to the United States District Court for the Middle District of North Carolina, Russell A. Eliason, United States Magistrate, on 2 June 1981 vacated the 1967 and 1968 sentences and ordered that defendant be resen-tenced. Defendant was resentenced on 28 August 1981 after evidence was received and arguments of both counsel heard.\nUnder his new sentences, defendant was given 7 to 10 years on the 1967 convictions, a concurrent sentence of \u201cten nor more than ten years\u201d for the conspiracy to commit murder conviction and a sentence of \u201cforty to forty years\u201d on the damage to an occupied dwelling conviction, which would begin to run at the end of the conspiracy to commit murder conviction. He was given credit for time served minus the time that he was out on escape.\nFrom the new sentences, defendant appealed.\nAttorney General Edmisten, by Associate Attorney Walter M. Smith, for the State.\nBarnes, Grimes and Bunce, by Jerry B. Grimes, for defendant-appe llant."
  },
  "file_name": "0338-01",
  "first_page_order": 370,
  "last_page_order": 373
}