In re Greene , 297 N.C. 305 ( 1979 )

We hold that the Courts of North Carolina do not have an “inherent” power to continue prayer for judgment on conditions or to suspend sentence where the sentence is made mandatory by the General Assembly.

It follows that Judge Greene’s duty in the case of Richard Allen Godwin was to pronounce judgment and sentence as mandated by the General Assembly in G.S. 20-179. This he failed and refused to do.

It is argued to us by Judge Greene that Rule 22 of the North Carolina Rules of Appellate Procedure requires the district attorney to file his petition in the Superior Court. In view of the nature of the petition, we suspend the operation of Rule 22 in order “to expedite decision in the public interest . . . .” App. R. 2. Also we elect to exercise the Constitutional authority of the Supreme Court to issue “any remedial writs necessary to give it general supervision and control over the proceedings of the other courts.” North Carolina Constitution, Article IV, Section 12(1).

Although the district attorney’s petition is labeled “Petition for Writ of Mandamus” we elect to treat it as a Petition for Writ of Prohibition.

IT IS THEREFORE ORDERED that Judge Greene, District Court Judge, Tenth Judicial District, be, and he is hereby, directed:

That upon conviction of a defendant in his court, or upon a defendant’s plea of guilty, or plea of nolo contendere in his court to a charge of a second or third offense of operating a motor vehicle in violation of G.S. 20-138, G.S. 20439(a), or G.S. 20439(b), to pronounce judgment in accordance with G.S. 20-179; that is to say, he shall neither continue prayer for judgment on conditions or suspend the first three days of the sentence of a pronounced judgment, for a second or third offense of a violation of G.S. 20-138, G.S. 20439(a), or G.S. 20439(b); provided, however, that in lieu of such imprisonment for a second offense of violating G.S. 20-138, G.S. 20439(a), or G.S. 20439(b), he may allow the defendant to participate in a program for alcohol or drug rehabilitation approved for this purpose by the Department of Human Resources; and upon defendant’s successful completion of such program he may suspend all or any part of the term of imprisonment.

The application of this Writ is prospective only and does not disturb the disposition of the case against Richard Allen Godwin.

It is further ordered that the Clerk of this Court is designated as Marshal of this Court to forthwith personally serve upon Judge Greene a certified copy of this Writ and make his return hereon.

By order of the Court in Conference this 1st day of June, 1979.

Brock, J.

For the Court