Noyes v. Peters

Court of Appeals of North Carolina

Noyes v. Peters

253 S.E.2d 584, 40 N.C. App. 763, 1979 N.C. App. LEXIS 2349

CourtCourt of Appeals of North Carolina

DecidedApril 17, 1979

DocketNo. 783SC499

StatusPublished

This text of 253 S.E.2d 584 (Noyes v. Peters) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Noyes v. Peters, 253 S.E.2d 584, 40 N.C. App. 763, 1979 N.C. App. LEXIS 2349 (N.C. Ct. App. 1979).

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Opinion

ARNOLD, Judge.

Petitioner correctly maintains that a plea of nolo contendere in a criminal action cannot be an admission of guilt in additional proceedings. He is also correct in arguing Winesett v. Scheidt, Comr. of Motor Vehicles, 239 N.C. 190, 79 S.E. 2d 501 (1954), for the proposition that where the Division has discretion under G.S. 20-16 to suspend driving privileges the Division cannot use a no contest plea as the basis for suspension.

However, as the State points out, the petitioner’s license was revoked here pursuant to G.S. 20-28 and not G.S. 20-16. There was thus a mandatory additional revocation of his license. See Beaver v. Scheldt, Comr. of Motor Vehicles, 251 N.C. 671, 111 S.E. 2d 881 (1960).

There is no discretion by the Division under G.S. 20-28 unless the judge and district attorney recommend in writing that the “Division examine into the facts.” The Division’s limited discretion, once such recommendation is made, is not to determine whether petitioner was guilty of violating G.S. 20-28, this determination already having been made before the Division could exercise any discretion. The limited discretion of the Division is then to “examine into the facts . . . and exercise discretion in suspending or revoking the driver’s license for the additional periods . . . , and [the Division] may impose a lesser period of additional suspension or revocation ... or may refrain from imposing any additional period.”

[765]*765Since petitioner was convicted of violating G.S. 20-28 the revocation of his license was mandatory, and the exercise of limited discretion by the Division under G.S. 20-28(a) does not change the mandatory character of the revocation. G.S. 20-25, under which petitioner purported to petition the Superior Court for a hearing in the matter, does not provide for such a hearing “where such cancellation is mandatory under the provisions of this Article.” Therefore, there was no jurisdiction under G.S. 20-25 in the Superior Court, or, consequently, in this Court. The appeal is

Dismissed.

Chief Judge MORRIS and Judge CLARK concur.

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ARNOLD, Judge.

Petitioner correctly maintains that a plea of nolo contendere in a criminal action cannot be an admission of guilt in additional proceedings. He is also correct in arguing Winesett v. Scheidt, Comr. of Motor Vehicles, 239 N.C. 190, 79 S.E. 2d 501 (1954), for the proposition that where the Division has discretion under G.S. 20-16 to suspend driving privileges the Division cannot use a no contest plea as the basis for suspension.

However, as the State points out, the petitioner’s license was revoked here pursuant to G.S. 20-28 and not G.S. 20-16. There was thus a mandatory additional revocation of his license. See Beaver v. Scheldt, Comr. of Motor Vehicles, 251 N.C. 671, 111 S.E. 2d 881 (1960).

There is no discretion by the Division under G.S. 20-28 unless the judge and district attorney recommend in writing that the “Division examine into the facts.” The Division’s limited discretion, once such recommendation is made, is not to determine whether petitioner was guilty of violating G.S. 20-28, this determination already having been made before the Division could exercise any discretion. The limited discretion of the Division is then to “examine into the facts . . . and exercise discretion in suspending or revoking the driver’s license for the additional periods . . . , and [the Division] may impose a lesser period of additional suspension or revocation ... or may refrain from imposing any additional period.”

[765]*765Since petitioner was convicted of violating G.S. 20-28 the revocation of his license was mandatory, and the exercise of limited discretion by the Division under G.S. 20-28(a) does not change the mandatory character of the revocation. G.S. 20-25, under which petitioner purported to petition the Superior Court for a hearing in the matter, does not provide for such a hearing “where such cancellation is mandatory under the provisions of this Article.” Therefore, there was no jurisdiction under G.S. 20-25 in the Superior Court, or, consequently, in this Court. The appeal is

Dismissed.

Chief Judge MORRIS and Judge CLARK concur.

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253 S.E.2d 584, 40 N.C. App. 763, 1979 N.C. App. LEXIS 2349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noyes-v-peters-ncctapp-1979.

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