In Re Moses , 17 N.C. App. 104 ( 1972 )

193 S.E.2d 375 (1972) 17 N.C. App. 104

In the Matter of Robert Lee MOSES, Juvenile.

No. 7226DC821.

Court of Appeals of North Carolina.

December 20, 1972.

Atty. Gen. Robert Morgan by Associate Atty. Gen. John M. Silverstein, for the State.

Mraz, Aycock & Casstevens by Frank B. Aycock, III, Charlotte, for juvenile Robert Lee Moses.

GRAHAM, Judge.

The judgment ordering respondent committed to the Board of Youth Development for an indeterminate period of time must be vacated and the cause remanded for resentencing.

It has been repeatedly held in this jurisdiction that a defendant's right to appeal may not be denied or abridged, nor may his attempt to exercise this right impose upon him an additional penalty or an enlargement of his sentence. State v. May, 8 N.C.App. 423, 174 S.E.2d 633, and cases cited therein. It appears from the circumstances described in the record that the action of the trial judge in ordering defendant committed for an indeterminate period was induced by defendant's expression, through counsel, of his intention to appeal the order to cut his hair and shave. The State candidly agrees that such practice has been specifically rejected in this State and in its brief quotes from State v. Patton, 221 N.C. 117, 118-119, 19 S.E.2d 142, 143-144, as follows:

"However, it appears from the record that after the trial judge had imposed sentence that the prayer for judgment be continued on condition that the defendant be of good behaviour and pay a fine of $25.00 and the costs, the defendant gave notice of appeal. Thereupon the judge ordered the previous judgment stricken out and imposed a sentence of ninety days in jail.

While undoubtedly the presiding judge had the power to change his judgment at any time during the term in his sound discretion (State v. Godwin, 210 N.C. 447, 187 S.E. 560), yet it seems here, under the circumstances described in the record, the action of the judge was induced by the defendant's expression of his intention to appeal. This tended to impose a penalty upon the defendant's right of appeal and to affect the exercise of his right to do so. . . .

. . . This right ought not to be denied or abridged, nor should the attempt to exercise this right impose upon the defendant an additional penalty or the enlargement of his sentence."

We find the instant case indistinguishable from Patton.

The subject of "hair" apparently continues, in some instances, to be a source of irritation between persons of different generations. The respondent seeks a decision as to whether a juvenile court may lawfully order him to cut his hair and shave. Since the court's order to this effect was stricken, the question is not before us, and until it is properly presented, we will devote our attention to problems of greater moment. Perhaps the question will never arise, for in most instances juvenile courts will undoubtedly find that there are other probationary conditions which are as well designed to rehabilitate a delinquent and assist him in leading a law abiding life as the requirement that he cut his hair and shave.

Judgment vacated and case remanded.

CAMPBELL and BROCK, JJ., concur.