{ "id": 8564806, "name": "STATE v. SHELBY EUGENE TOLLEY", "name_abbreviation": "State v. Tolley", "decision_date": "1967-09-27", "docket_number": "", "first_page": "459", "last_page": "462", "citations": [ { "type": "official", "cite": "271 N.C. 459" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "85 S.E. 2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613740 ], "opinion_index": 0, "case_paths": [ "/nc/241/0548-01" ] }, { "cite": "150 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562822 ], "opinion_index": 0, "case_paths": [ "/nc/268/0447-01" ] }, { "cite": "146 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561002 ], "opinion_index": 0, "case_paths": [ "/nc/266/0406-01" ] }, { "cite": "132 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574772 ], "opinion_index": 0, "case_paths": [ "/nc/260/0352-01" ] } ], "analysis": { "cardinality": 447, "char_count": 9211, "ocr_confidence": 0.57, "pagerank": { "raw": 2.805175344626904e-07, "percentile": 0.837143014901641 }, "sha256": "f59b501fc4c3cbf2cb0dbe54a04451904e959c8c3b0d416833e758f05ac7a11d", "simhash": "1:4619ce5b0e6a3c73", "word_count": 1572 }, "last_updated": "2023-07-14T20:46:10.850261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. SHELBY EUGENE TOLLEY." ], "opinions": [ { "text": "Per Curiam.\nIf the superior court judgment were valid in all other respects, the fact that it imposes a punishment greater than that imposed in the Police Court of Asheville does not afford any basis for the relief sought by petitioner. Upon petitioner\u2019s appeal from the judgments pronounced in the Police Court of Asheville, the cases were for trial de novo in the superior court. Private Laws of 1905, Chapter 35, Section 6. However, the superior court judgment is invalid for the reasons stated below.\nEvery person convicted of speeding in violation of G.S. 20-141, where the speed is not in excess of eighty miles per hour, \u201cshall be punished by a fine of not more than one hundred dollars ($100.00) or by imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment.\u201d G.S. 20-180; G.S. 20-176 (b).\n\u201cAny person convicted of reckless driving shall be punished by imprisonment not to exceed six months or by a fine, not to exceed five hundred dollars ($500.00) or by both such imprisonment and fine, in the discretion of the court.\u201d G.S. 20-140 (c).\nWe pass, without discussion, whether the count with reference to \u201cimproper license tag\u201d is sufficient to charge a criminal offense. Assuming it does, it is unclear whether it purports to charge a violation of G.S. 20-63 or a violation of G.S. 20-111. In either event, the maximum punishment for such violation would be that prescribed by G.S. 20-176(b), namely, \u201ca fine of not more than one hundred dollars ($100.00) or ... imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment.\u201d\nUnder G.S. 20-7 (n), any person convicted of operating a motor vehicle over any highway in this State, without having first been licensed as such operator, in violation of G.S. 20-7 (a) \u201cshall be guilty of a misdemeanor and punished in the discretion of the court.\u201d However, G.S. 20-35(b) provides: \u201cUnless another penalty is in this article or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any provision of this article shall be punished by a fine of not more than five hundred ($500.00) dollars or by imprisonment for not more than six (6) months.\u201d G.S. 20-7 and G.S. 20-35 are provisions of Article 2 of Chapter 20 of the General Statutes. These statutory provisions, being in pari materia, must be construed together; and, if possible, they must be reconciled and harmonized. When so construed, we are of opinion, and so decide, that the explicit provisions of G.S. 20-35 establish the maximum limits of the court\u2019s discretionary power in respect of punishment for a violation of G.S. 20-7 (a). Decisions which, in Chief Justice Stacy\u2019s phrase, are \u201cobliquely relevant\u201d include State v. Blackmon, 260 N.C. 352, 132 S.E. 2d 880; State v. Adams, 266 N.C. 406, 146 S.E. 2d 505; State v. Thompson, 268 N.C. 447, 150 S.E. 2d 781.\nThe cases having been consolidated for judgment, the court had no authority \u201cto enter a judgment in gross in excess of the greatest statutory penalty applicable to any of the counts upon which there has been a conviction or plea of guilty.\u201d State v. Austin, 241 N.C. 548, 85 S.E. 2d 924. Here, no count to which defendant pleaded guilty charged a criminal offense punishable by imprisonment for a term in excess of six months. Hence, the judgment of the superior court is invalid and is vacated.\n\u201cIt is the general rule in this jurisdiction that where a defendant has been properly convicted but given a sentence in excess of that authorized by law, and comes to this Court pursuant to a petition for writ of certiorari in a habeas corpus proceeding, when such defendant has not served as long under the sentence as he might have been legally imprisoned, we vacate the improper judgment and remand for proper sentence. In such case, the defendant should be given credit for the time served under the vacated judgment.\u201d State v. Austin, supra; State v. Thompson, supra.\nDefendant having served more than six months under said superior court judgment, and all beyond six months of the sentence being excessive, he is entitled to be discharged. It is so ordered. Therefore, let this opinion be certified immediately to the Commissioner \u25a0of Corrections and also to the Superior- Court of Buncombe County to the end that petitioner be discharged from custody forthwith.\nJudgment vacated.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Attorney General Bruton and Staff Attorney White for the State. Shelby Eugene Tolley in 'propria persona." ], "corrections": "", "head_matter": "STATE v. SHELBY EUGENE TOLLEY.\n(Filed 27 September, 1967.)\n1. Criminal Law \u00a7\u00a7 18, 138\u2014\nUpon trial de novo in the Superior Oourt upon appeal from an inferior court, the Superior Oourt may impose a punishment in excess of that imposed in the inferior court provided the punishment does not exceed the statutory maximum.\n2. Automobiles \u00a7 117; Criminal Law \u00a7 138\u2014\nThe punishment for speeding in violation of G.S. 20-141, where the speed is not in excess of 80 miles per hour, is limited to a fine of $100 or imprisonment for not more than 60 days, or both. G.S. 20-180, G.S. 20-176(b).\n8. Automobiles \u00a7 119; Criminal Law \u00a7 138\u2014\nThe punishment for reckless driving is limited to a fine not exceeding $500 or imprisonment not to exceed six months, or both, in the discretion of the court. G.S. 20-140 (c).\n4. Automobiles \u00a7 3; Criminal Law \u00a7 138\u2014\nG.S. 20-7 and G.S. 20-35 must be construed in pari materia, and the provision of G.S. 20-7 (n) that a person convicted of driving a motor vehicle on the highways of this State without having first been licensed as required by the statute should be guilty of a misdemeanor and punished in the discretion of the court is limited by G.S. 20-35 (b) so that punishment for violation of G.S. 20-7 may not exceed a fine of $500 or imprisonment for six months.\n3. Criminal Law \u00a7 138\u2014\nWhere convictions on several warrants or indictments are consolidated for judgment, the judgment cannot exceed that prescribed by the most severe statutory penalty for any one of the offenses.\n<3. Same\u2014\nWhere the sentence imposed by the lower court is in excess of the statutory maximum and the prisoner has already served more than such maximum, the opinion of the Supreme Court will be certified immediately to the end that the prisoner be discharged from custody forthwith.\nCertioRARI to review order of Bryson, J., entered May 18, 1967, in BuNCOMbe Superior Court, in habeas corpus proceeding upon petition of Shelby Eugene Tolley.\nThe answer of the Attorney General to the petition of Shelby Eugene Tolley (Tolley) for certiorari discloses the facts set forth below.\nTwo warrants, each containing two counts, were issued March 2, 1966, out of the Police Court of the City of Asheville, charging offenses alleged to have been committed on February 28, 1966. The warrant in No. 8474 charged that defendant operated a motor vehicle upon the public streets and highways (1) at a speed of 70 miles per hour in a 35-mile per hour speed zone, and (2) \u201cin a dangerous and reckless manner, and with wanton disregard for safety of life and/or person and/or property of others.\u201d The warrant in No. 8475 charged that defendant operated an automobile upon the public streets and highways (1) with an improper license tag, to wit, a South Carolina license plate, and (2) \u201cwithout having first obtained an operator\u2019s license in violation of N. C. Motor Vehicle Law 20-7.\u201d\nDefendant was tried on both warrants in the Police Court of Asheville on March 3, 1966, and adjudged guilty. In No. 8475, defendant was sentenced to a prison term of 60 days, \u201cto be assigned to a 1st offender\u2019s camp.\u201d In No. 8474, defendant was sentenced on each of the two counts of speeding and reckless driving to a prison term of 90 days. Judgment provided that these two 90-day sentences would run concurrently with each other but consecutively with reference to the sentence of 60 days in No. 8475. Defendant appealed from these judgments to the superior court.\nAt March 14, 1966 Session of Buncombe Superior Court before Falls, J., defendant pleaded guilty to the four counts in said warrants. The court consolidated the two cases for judgment. One judgment, imposing a prison sentence of two years, was pronounced.\nDefendant served, pursuant to commitment based on said superior court judgment, from March 16, 1966, until October 25, 1966, more than six months. He was paroled October 25, 1966, but thereafter his parole was revoked and he was taken into custody on April 5, 1967, and is presently serving the remaining portion of said sentence of two (2) years imposed at said March 14, 1966 Session.\nIn a petition filed April 25, 1967, in Buncombe Superior Court, Tolley alleged the said superior court judgment is invalid because the punishment imposed thereby is greater than the punishment imposed by the judgment of the Police Court of Asheville. Apparently, Judge Bryson considered Tolley\u2019s petition as a petition for a writ of habeas corpus; and, being of the opinion the said two-year sentence pronounced by Judge Falls was lawful, denied relief.\nThis Court grants Tolley\u2019s petition for certiorari to review Judge Bryson\u2019s order and passes upon the merits thereof in the manner set forth in the opinion.\nAttorney General Bruton and Staff Attorney White for the State. Shelby Eugene Tolley in 'propria persona." }, "file_name": "0459-01", "first_page_order": 493, "last_page_order": 496 }