State v. Barnes

Court of Appeals of North Carolina

State v. Barnes

310 S.E.2d 30, 65 N.C. App. 426, 1983 N.C. App. LEXIS 3485

CourtCourt of Appeals of North Carolina

DecidedDecember 6, 1983

DocketNo. 832SC127

StatusPublished

This text of 310 S.E.2d 30 (State v. Barnes) 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. Barnes, 310 S.E.2d 30, 65 N.C. App. 426, 1983 N.C. App. LEXIS 3485 (N.C. Ct. App. 1983).

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Opinion

HILL, Judge.

Defendant appeals revocation of a judgment of probation and the imposition of an active sentence. It appearing on appeal that the record is completely silent as to whether the defendant was indigent, whether the defendant knew he had a right to counsel and whether he made a knowing waiver of his right to counsel at his original trial, the trial judge should not have imposed an active prison sentence. State v. Neeley, 307 N.C. 247, 297 S.E. 2d 389 (1982). We therefore vacate the judgment entered at the 29 April 1981 Criminal Session of the District Court of Martin County and twelve months prison sentence. The cause is remanded to the District Court of Martin County for a new trial.

We feel we are bound in our decision by State v. Neeley, supra. Nevertheless, we endorse the premise that where a defendant stands silent and does not inform the trial judge of his indigency and lack of knowledge of his right to counsel at any hearing, he deprives the trial division of the opportunity to pass on the constitutional question and should be properly precluded from raising the issue on appeal. See State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983).

Reversed and remanded.

Judges Arnold and Braswell concur.

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HILL, Judge.

Defendant appeals revocation of a judgment of probation and the imposition of an active sentence. It appearing on appeal that the record is completely silent as to whether the defendant was indigent, whether the defendant knew he had a right to counsel and whether he made a knowing waiver of his right to counsel at his original trial, the trial judge should not have imposed an active prison sentence. State v. Neeley, 307 N.C. 247, 297 S.E. 2d 389 (1982). We therefore vacate the judgment entered at the 29 April 1981 Criminal Session of the District Court of Martin County and twelve months prison sentence. The cause is remanded to the District Court of Martin County for a new trial.

We feel we are bound in our decision by State v. Neeley, supra. Nevertheless, we endorse the premise that where a defendant stands silent and does not inform the trial judge of his indigency and lack of knowledge of his right to counsel at any hearing, he deprives the trial division of the opportunity to pass on the constitutional question and should be properly precluded from raising the issue on appeal. See State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983).

Reversed and remanded.

Judges Arnold and Braswell concur.

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Bluebook (online)

310 S.E.2d 30, 65 N.C. App. 426, 1983 N.C. App. LEXIS 3485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnes-ncctapp-1983.

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