State v. Acuff

Court of Appeals of North Carolina

State v. Acuff

177 S.E.2d 304, 9 N.C. App. 715, 1970 N.C. App. LEXIS 1450

CourtCourt of Appeals of North Carolina

DecidedNovember 18, 1970

DocketNo. 7027SC622

StatusPublished

Cited by1 cases

This text of 177 S.E.2d 304 (State v. Acuff) 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

State v. Acuff, 177 S.E.2d 304, 9 N.C. App. 715, 1970 N.C. App. LEXIS 1450 (N.C. Ct. App. 1970).

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Opinion

MORRIS, Judge.

On appeal defendant contends that he did not intelligently and understanding^ waive his rights because the court failed to advise him that the result of the hearing could be that he would have to serve the three to five year sentence; and, therefore, the court committed reversible error in entering the order revoking his probation and putting the three to five year sentence into effect. He does not contend that the facts found were not supported by competent evidence.

The record reveals that when the court was advised that defendant wished to waive his right to counsel and a bill of particulars, he questioned the defendant thoroughly in open [717]*717court. From the questions asked by the court and the unequivocal answers of the defendant, there can be no doubt but that the defendant clearly understood that he had a right to have a bill of particulars served on him twenty-four hours before the hearing, had a right to counsel, to have counsel appointed if he could not afford counsel, and had a right to waive these rights if he so desired. In addition, he signed written waivers of both rights.

' Defendant cites no authority for his contention that the court erred in failing to advise defendant that his suspended sentence could be activated. It is obvious that defendant was aware of that possibility and had been aware of it since the entry of the probationary judgment in 1967. Signifying his consent to the terms of the probation, defendant signed the order which contained the following: “If you violate any of the conditions of your probation or orders of your probation officer you will be subject to arrest upon order of the Court, or by the probation officer. At any time within the period of your probation, the Court may, if it see fit, impose the Judgment and sentence it might have imposed in the first instance.”

In the proceedings in the superior court, we find

No error.

Judges Beocic and Graham concur.

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MORRIS, Judge.

On appeal defendant contends that he did not intelligently and understanding^ waive his rights because the court failed to advise him that the result of the hearing could be that he would have to serve the three to five year sentence; and, therefore, the court committed reversible error in entering the order revoking his probation and putting the three to five year sentence into effect. He does not contend that the facts found were not supported by competent evidence.

The record reveals that when the court was advised that defendant wished to waive his right to counsel and a bill of particulars, he questioned the defendant thoroughly in open [717]*717court. From the questions asked by the court and the unequivocal answers of the defendant, there can be no doubt but that the defendant clearly understood that he had a right to have a bill of particulars served on him twenty-four hours before the hearing, had a right to counsel, to have counsel appointed if he could not afford counsel, and had a right to waive these rights if he so desired. In addition, he signed written waivers of both rights.

' Defendant cites no authority for his contention that the court erred in failing to advise defendant that his suspended sentence could be activated. It is obvious that defendant was aware of that possibility and had been aware of it since the entry of the probationary judgment in 1967. Signifying his consent to the terms of the probation, defendant signed the order which contained the following: “If you violate any of the conditions of your probation or orders of your probation officer you will be subject to arrest upon order of the Court, or by the probation officer. At any time within the period of your probation, the Court may, if it see fit, impose the Judgment and sentence it might have imposed in the first instance.”

In the proceedings in the superior court, we find

No error.

Judges Beocic and Graham concur.

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Bluebook (online)

177 S.E.2d 304, 9 N.C. App. 715, 1970 N.C. App. LEXIS 1450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-acuff-ncctapp-1970.

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