State v. Gainey

Denny, C.J.

The defendant entered no exceptions in the trial below and assigns no error on this appeal. He does, however, attempt to raise two questions in his brief. (1) Did the court below commit error in conducting a post conviction hearing in the absence of the petitioner and by granting relief not requested in the petition? (2) Did the court below err in denying the defendant’s motion for dismissal of prosecution on the ground of former jeopardy?

The record does not contain exceptions' upon which appellant’s alleged errors may be grounded.

*439 A post conviction hearing is not a trial. It is not designed to be a second day in court, nor is it a substitute for appeal. It is a post conviction remedy to determine whether a defendant was deprived of any constitutional right in his original trial. This is a question of law for the court.

S. v. Wheeler, 249 N.C. 187 , 105 S.E. 2d 615 , and cited cases. Furthermore, there is no requirement that a defendant be present at a post conviction hearing. In pertinent part, G.S. 15-221 reads as follows: “The court may receive proof by affidavits, depositions, oral testimony, or other evidence, and the court shall pass upon all issues or questions of fact arising in the proceeding without the aid of a jury. In its discretion, the court may order the petitioner brought before the court for the hearing. * * *”

In the instant case, at the post conviction hearing, the petitioner was granted a new trial and thereafter elected to ratify the action of the court in granting such new trial.

On the second question above set out, when a prisoner obtains a new trial by virtue of a habeas corpus proceeding or a post conviction hearing, he accepts the hazards as well as the benefits of a new trial.

S. v. Anderson, 262 N.C. 491 , 137 S.E. 2d 823 ;

S. v. White, 262 N.C. 52 , 136 S.E. 2d 205 . The plea of former jeopardy is without merit. Moreover, the appellant herein freely, voluntarily, without being influenced by anyone, without duress, and without promise of leniency, pleaded guilty to both offenses of which he was indicted. A subsequent plea of guilty constitutes a waiver of the plea of former jeopardy. 14 Am. Jur., Criminal Law, § 280, page 958.

In 21 Am. Jur. 2d, Criminal Law, § 209, page 253, et seq., it is said: “A defendant waives his constitutional protection against double jeopardy when a verdict or judgment against him is set aside at his own instance either on motion in the lower court or on a successful appeal. This is also true where he merely asks that a judgment against him be vacated but the court goes beyond what he asks and orders a new trial. In such a case, the defendant may be tried anew on the same indictment for the same offense of which he was convicted, or he may be prosecuted on a new information charging the offense.”

Green v. United States, 355 U.S. 184 , 2 L. Ed. 2d 199 , 61 A.L.R. 2d 1119 ;

Murphy v. Massachusetts, 177 U.S. 155 , 44 L. Ed. 711 ; Anno: 61 A.L.R. 2d 1143 .

The judgments imposed in the court below are Affirmed.