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N.C.App.1 SPRING SESSION 1973 339
State P. Johnson
ton, North Carolina, on 23 July 1972, larceny of tools belonging
to American Imports, Inc., on 23 July 1972, and larceny of an
automobile belonging to Dr. R. M. Shah on 23 July 1972. The
pleas were accepted by the court after finding that they were
voluntarily and understandingly entered, without duress or
promise of leniency. He was sentenced to a term of imprison-ment
of ten years for each offense, only two of which are to
run consecutively.
Attorney General Rolbert Morgan by Associate Attorney C.
Diederich Heidgerd f o t~he State.
Jeffrey T. Myles for defefidant appellant.
CAMPBELL, Judge.
The only question on appeal argued by defendant is that the
punishment he received is excessive, since his only crime was
against property. Defendant argued, relying upon Burman v.
Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct 2726 (1972),
that because the trial court has wide discretion in determining
the length of time of imprisonment it may order, such discretion
is discriminatory, and thus unconstitutional.
Discretionary sentencing statutes with respect to imprison-ment
or fine are not unconstitutional. A sentence of imprison-ment
which is within the maximum authorized by statute is not
cruel or unusual punishment. Where the trial judge has imposed
a prison sentence within that allowed by statute, the judgment
must be upheld. State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296,
cert. denied, 409 U.S. 1047, 34 L.Ed. 2d 499, 93 S.Ct. 537
(1972).
Just as the trid judge in Cradle did not abuse his discretion
in sentencing that defendant to imprisonment for seven to
ten years for uttering a forged check in the sum of $50.00, so
we find no abuse of discretion in the instant case.
Affirmed.
Judges PARKEaRnd HEDRICKc oncur.
Object Description
| Title | North Carolina Court of Appeals Reports [v.018, Spring Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 18, Spring Session 1973. Cited as 18 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 36.8 MB; 832 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_018.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 363 |
| Full Text | N.C.App.1 SPRING SESSION 1973 339 State P. Johnson ton, North Carolina, on 23 July 1972, larceny of tools belonging to American Imports, Inc., on 23 July 1972, and larceny of an automobile belonging to Dr. R. M. Shah on 23 July 1972. The pleas were accepted by the court after finding that they were voluntarily and understandingly entered, without duress or promise of leniency. He was sentenced to a term of imprison-ment of ten years for each offense, only two of which are to run consecutively. Attorney General Rolbert Morgan by Associate Attorney C. Diederich Heidgerd f o t~he State. Jeffrey T. Myles for defefidant appellant. CAMPBELL, Judge. The only question on appeal argued by defendant is that the punishment he received is excessive, since his only crime was against property. Defendant argued, relying upon Burman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct 2726 (1972), that because the trial court has wide discretion in determining the length of time of imprisonment it may order, such discretion is discriminatory, and thus unconstitutional. Discretionary sentencing statutes with respect to imprison-ment or fine are not unconstitutional. A sentence of imprison-ment which is within the maximum authorized by statute is not cruel or unusual punishment. Where the trial judge has imposed a prison sentence within that allowed by statute, the judgment must be upheld. State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296, cert. denied, 409 U.S. 1047, 34 L.Ed. 2d 499, 93 S.Ct. 537 (1972). Just as the trid judge in Cradle did not abuse his discretion in sentencing that defendant to imprisonment for seven to ten years for uttering a forged check in the sum of $50.00, so we find no abuse of discretion in the instant case. Affirmed. Judges PARKEaRnd HEDRICKc oncur. |
