State v. Fain

Supreme Court of North Carolina

State v. Fain

108 S.E.2d 68, 250 N.C. 117, 1959 N.C. LEXIS 612

CourtSupreme Court of North Carolina

DecidedApril 15, 1959

StatusPublished

Cited by2 cases

This text of 108 S.E.2d 68 (State v. Fain) is published on Counsel Stack Legal Research, covering Supreme Court 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. Fain, 108 S.E.2d 68, 250 N.C. 117, 1959 N.C. LEXIS 612 (N.C. 1959).

Pincite

Opinion

PeR Cukiam.

The defendant -prays this Court for review of the records and for his discharge from custody.

The sentence of not less than twelve years and not more than fifteen years, imposed in Gaston County in 1957, is excessive. The applicable statute, G.S. 14-70, provides for punishment of not less than four months nor more than ten years. Consequently, the sentence is excessive both as to its maximum and its minimum. Even so, the defendant is not entitled to his discharge since he has not served for a period in excess of that to which he might have been lawfully -sentenced. S. v. Austin, 241 N.C. 548, 85 S.E. 2d 924; S. v. Byers, 248 N.C. 744, 105 S.E. 2d 71.

This cause is remanded to Gaston County for the imposition of a sentence not in excess of that authorized by law. The sentence imposed) will be effective -as of 13 April 1957, so that the defendant will have the benefit of the time already served. S. v. Clendon, 249 N.C. 44, 105 S.E. 2d 93.

Since the sentence imposed in Gaston County in 1957 will be vacated, this will make uncertain the time the sentence imposed in Stanly County is to begin; therefore, upon the imposition of the -authorized sentence in Gaston County the cause will then be remanded to St'anly County for imposition of an appropriate sentence based on the defendant’s plea of guilty on the bill of indictment charging -him with an escape at the July Term 1958 of the Superior Court of Stanly County. S. v. Clendon, supra.

Remanded.

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PeR Cukiam.

The defendant -prays this Court for review of the records and for his discharge from custody.

The sentence of not less than twelve years and not more than fifteen years, imposed in Gaston County in 1957, is excessive. The applicable statute, G.S. 14-70, provides for punishment of not less than four months nor more than ten years. Consequently, the sentence is excessive both as to its maximum and its minimum. Even so, the defendant is not entitled to his discharge since he has not served for a period in excess of that to which he might have been lawfully -sentenced. S. v. Austin, 241 N.C. 548, 85 S.E. 2d 924; S. v. Byers, 248 N.C. 744, 105 S.E. 2d 71.

This cause is remanded to Gaston County for the imposition of a sentence not in excess of that authorized by law. The sentence imposed) will be effective -as of 13 April 1957, so that the defendant will have the benefit of the time already served. S. v. Clendon, 249 N.C. 44, 105 S.E. 2d 93.

Since the sentence imposed in Gaston County in 1957 will be vacated, this will make uncertain the time the sentence imposed in Stanly County is to begin; therefore, upon the imposition of the -authorized sentence in Gaston County the cause will then be remanded to St'anly County for imposition of an appropriate sentence based on the defendant’s plea of guilty on the bill of indictment charging -him with an escape at the July Term 1958 of the Superior Court of Stanly County. S. v. Clendon, supra.

Remanded.

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Bluebook (online)

108 S.E.2d 68, 250 N.C. 117, 1959 N.C. LEXIS 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fain-nc-1959.

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