No. 42.

173 S.E.2d 778 (1970)

276 N.C. 550

STATE of North Carolina v. Abram C. CAUDLE, III.

Supreme Court of North Carolina.

May 13, 1970.

Attorney(s) appearing for the Case

Atty. Gen. Robert Morgan and Christine Y. Denson, Raleigh, Staff Atty., for the State.

John W. Hinsdale, Raleigh, for defendant-appellant.

LAKE, Justice.

The record presents this question: Assuming the failure of the defendant to make the payments to the bank was wilful and without lawful excuse, may the sentence to jail be placed into effect for this failure? We hold that it may not.

The Constitution of North Carolina, Article I, § 16, provides, "There shall be no imprisonment for debt in this State, except in cases of fraud." The defendant, charged with the use of a revoked bank credit card with intent to defraud the bank, entered a plea of guilty. Nothing else appearing, the foregoing provision of the Constitution would not prevent his imprisonment for such conduct. However, the court which imposed the sentence to imprisonment suspended the sentence upon three specified conditions, to which the defendant consented.

"Where a sentence in a criminal case is suspended upon certain valid conditions expressed in the sentence imposed, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand." State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 378. Accord: State v. Seagraves, 266 N.C. 112, 145 S.E.2d 327; State v. Rogers, 221 N.C. 462, 20 S.E.2d 297. A defendant, having consented, expressly or by implication, to the suspension, upon specified conditions, of an otherwise valid sentence to imprisonment, may not thereafter attack the validity of an order putting such sentence into effect, entered after due notice and hearing, except: (1) On the ground that there is no evidence to support a finding of a breach of the conditions of suspension; or (2) on the ground that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. State v. Cole, 241 N.C. 576, 86 S.E.2d 203; State v. Smith, 233 N.C. 68, 62 S.E.2d 495; State v. Miller, 225 N.C. 213, 34 S.E.2d 143. The defendant's consent to the suspension of the prison sentence does not, however, preclude him from contesting the reasonableness of the condition which he has broken, when such breach is made the ground for putting the prison sentence into effect. State v. Griffin, 246 N.C. 680, 100 S.E.2d 49. As to the right of such defendant to challenge in the subsequent proceeding the validity of the condition upon which sentence was suspended, see also: State v. Hewett, 270 N.C. 348, 154 S.E.2d 476; State v. Duncan, 270 N.C. 241, 154 S.E.2d 53; State v. Seagraves, supra; State v. Robinson, supra. General statements found in State v. Collins, 247 N.C. 248, 100 S.E.2d 492, and in State v. Henderson, 207 N.C. 258, 176 S.E. 758, to the effect that a defendant, having accepted a suspended sentence without appeal, cannot thereafter attack the validity of the conditions of such suspension, are in conflict with this well established rule and are, therefore, not approved. A condition which is a violation of the defendant's constitutional right, and, therefore, beyond the power of the court to impose, is per se unreasonable and subject to attack by the defendant upon the State's subsequent motion to put the sentence into effect for violation of that condition. See: State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651; State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922; Myers v. Barnhardt, 202 N.C. 49, 161 S.E. 715; State v. Whitt, 117 N.C. 804, 23 S.E. 452.

This Court has recognized the authority of the trial court to impose a prison sentence and suspend the same upon condition that the defendant make compensatory payments to the person injured by his criminal act. See: State v. Robinson, supra; State v. Simmington, 235 N.C. 612, 70 S.E.2d 842; Myers v. Barnhardt, supra; State v. Whitt, supra. In the Simmington case, the Court said that the question of whether the activation of a prison sentence for the defendant's failure to make such compensatory payments amounted to imprisonment for debt in violation of the above quoted constitutional provision was not before it, but then went on to sustain the order activating the sentence, saying, "When he is imprisoned, he will be imprisoned for his breach of the criminal law and not for the failure to pay damages.

We have found no decision of this Court sustaining an order putting into effect a prison sentence for the failure of the defendant to pay obligations incurred by him otherwise than as the result of the act for which he was originally convicted, with the exception of the obligation imposed by law for the support of the defendant's wife or child. In our opinion, it is not sufficient to say, as was said in State v. Simmington, supra, that when such defendant is imprisoned he will be imprisoned for his criminal act and not for his nonpayment of his debt. The purpose of the above quoted provision of our Constitution was to prevent the use of the criminal process to enforce the payment of civil obligations, directly or indirectly. To suspend a sentence of imprisonment for a criminal act, however just the sentence may be per se, on condition that the defendant pay obligations unrelated to such criminal act, however justly owing, is a use of the criminal process to enforce the payment of a civil obligation and lends itself to the oppressive action which the provision of the Constitution was designed to forbid. To sustain the suspension of sentence upon such a condition would invite misuse of the practice of suspending sentence. It would substitute for the humane consideration and the objective of reformation, upon which the practice ought to rest, an entirely different purpose. See: State v. Hilton, 151 N.C. 687, 65 S.E. 1011; State v. Doughtie, supra.

In the present case, the sentence of imprisonment was suspended upon three conditions: (1) Payment of a fine and costs; (2) payment "of $7,326.29 for the use and benefit of North Carolina National Bank"; and (3) remaining on general good behavior and not violating any criminal law of the State. It is not contended that the first or the third of these conditions has been broken by the defendant. He has now been ordered to jail because he has not paid the sum of money which, presumably, he lawfully and justly owes the bank. There is nothing whatever in this record to show that such indebtedness, over and above the $631.78 mentioned in the warrant, was contracted fraudulently or that it grew out of the defendant's use of the bank credit card. It is obvious from the face of the warrant upon which the defendant was tried that the major part of this indebtedness was not created by the criminal acts to which the defendant entered his plea of guilty. If, indeed, this indebtedness, or any part thereof, arose out of some other use of the credit card issued by the bank to this defendant, which use was a violation of the criminal law, the right of the State to try the defendant therefor upon proper criminal process is not before us in this case.

We do not have before us for determination the validity of the statutory provision that a series of independent and unrelated misuses of a bank credit card, each constituting a misdemeanor within itself, will, in their totality, constitute a felony, if they all occurred within a specified period of time. See: G.S. § 14-113.13; G.S. § 14-113.17. It is also unnecessary to determine in this case whether the process upon which the defendant is charged with the violation of G.S. § 14-113.13 must charge each wrongful use of the card in a separate count.

The sole question before us is whether the second condition upon which the defendant's sentence was suspended is valid. We hold it is not and, therefore, the order of the Superior Court putting the prison sentence into effect because of his breach of this condition was error and must be vacated, irrespective of wilfulness or want of lawful excuse for the breach of the condition.

The Court of Appeals was in error in remanding this matter to the Superior Court for further hearing. It should have simply vacated the order of the Superior Court which put the prison sentence into effect, without prejudice to the right of the State to move for activation of the sentence if the defendant has violated, or hereafter violates, the third condition upon which the sentence was originally suspended. The matter is hereby remanded to the Court of Appeals for the entry of a judgment in accordance with this opinion.

Error and remanded.


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