State v. Edmonds

Court of Appeals of North Carolina

State v. Edmonds

198 S.E.2d 27, 19 N.C. App. 105, 1973 N.C. App. LEXIS 1583

CourtCourt of Appeals of North Carolina

DecidedJuly 25, 1973

Docket737SC503

StatusPublished

Cited by7 cases

This text of 198 S.E.2d 27 (State v. Edmonds) 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. Edmonds, 198 S.E.2d 27, 19 N.C. App. 105, 1973 N.C. App. LEXIS 1583 (N.C. Ct. App. 1973).

Pincite

Opinion

BRITT, Judge.

Defendant’s only assignment of error is that the trial court erred in signing and entering the second judgment and commitment without specifically vacating or striking the prior judgment duly signed and entered at the same session (term). We hold that the court .did not err.

Defendant recognizes, and authorities support, the principle that during a session of the court a judgment is in fieri and the court has authority in its sound discretion, prior to expiration of the session, to modify, amend or set aside the judgment. 5 Strong’s N. C. Index 2d, Judgments, § 6, pp. 14-15; Wiggins v. Bunch, 280 N.C. 106, 184 S.E. 2d 879 (1971); *107 Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E. 2d 33 (1966); In re Moses, 17 N.C. App. 104, 193 S.E. 2d 375 (1972).

While recognizing the principle stated, defendant contends the court may not enter two conflicting judgments. The record indicates that two days after the entry of a judgment imposing a prison sentence suspended upon compliance with certain conditions, but during the same session, the court entered the second judgment imposing an active sentence. By its. latter action the court did not enter a second judgment to stand with the first judgment, thereby creating a conflict, nor did the court activate the suspended sentence; rather, the court, in its discretion, modified the first judgment. State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936).

The judgment appealed from is

Affirmed.

Judges Morris and Parker concur.

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BRITT, Judge.

Defendant’s only assignment of error is that the trial court erred in signing and entering the second judgment and commitment without specifically vacating or striking the prior judgment duly signed and entered at the same session (term). We hold that the court .did not err.

Defendant recognizes, and authorities support, the principle that during a session of the court a judgment is in fieri and the court has authority in its sound discretion, prior to expiration of the session, to modify, amend or set aside the judgment. 5 Strong’s N. C. Index 2d, Judgments, § 6, pp. 14-15; Wiggins v. Bunch, 280 N.C. 106, 184 S.E. 2d 879 (1971); *107 Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E. 2d 33 (1966); In re Moses, 17 N.C. App. 104, 193 S.E. 2d 375 (1972).

While recognizing the principle stated, defendant contends the court may not enter two conflicting judgments. The record indicates that two days after the entry of a judgment imposing a prison sentence suspended upon compliance with certain conditions, but during the same session, the court entered the second judgment imposing an active sentence. By its. latter action the court did not enter a second judgment to stand with the first judgment, thereby creating a conflict, nor did the court activate the suspended sentence; rather, the court, in its discretion, modified the first judgment. State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936).

The judgment appealed from is

Affirmed.

Judges Morris and Parker concur.

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Bluebook (online)

198 S.E.2d 27, 19 N.C. App. 105, 1973 N.C. App. LEXIS 1583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-edmonds-ncctapp-1973.

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