State v. Bethea

158 S.E.2d 591, 272 N.C. 521, 1968 N.C. LEXIS 694

• Court: Supreme Court of North Carolina
• Decided: January 12, 1968
• Docket: 272-I
• Status: Published

Opinion

PeR Curiam.

Defendant’s only assignment of error is that the sentences prescribed constituted “excessive, cruel and unreasonable punishment.” This assignment cannot be sustained. The sentences were below the statutory maximum for the offenses to which defendant pled guilty. They therefore cannot be cruel and unusual in the constitutional sense. State v. Robinson, 271 N.C. 448, 156 S.E. 2d 854. In Case No. 50-358, however, error appears upon the face of the record.

By written waiver, signed by a defendant and his counsel, the defendant may waive the finding of a bill of indictment in noncapital felony cases. In such cases, however, G.S. 15-140.1 requires that “the prosecution shall be on an information signed by the solicitor.” (Italics ours.) The solicitor’s signature does not appear upon the purported information. Instead of preparing an information as contemplated by the statute, the solicitor attempted to use the warrant as an information. This is a practice which we do not approve. In any event, the solicitor’s failure to affix his signature to the statement of the accusation to which defendant pled guilty rendered the plea void. The solicitor may yet, however, try the defendant on a bill of indictment or upon a valid information.

Where the offense charged is a misdemeanor and defendant’s plea is not guilty, the requirements for a waiver of indictment and trial upon an information signed by the solicitor are the same as in noncapital felony cases. G.S. 15-140. In Case No. 50-357, however, defendant pled guilty to a misdemeanor. The sentence imposed in that case is sustained. Notwithstanding, whether the plea be guilty or not guilty, in all cases the better practice is the preparation of an information.

As to Case No. 50-357,

No error.

As to Case No. 50-358,

Judgment arrested.