Sam WILLIAMS
v.
STATE of North Carolina.
No. 272-O.
Supreme Court of North Carolina.
January 20, 1967.*112 George S. Daly, Jr., Charlotte, for petitioner.
T. W. Bruton, Atty. Gen., Raleigh, for appellee.
PER CURIAM:
The defendant here seeks credit for the time served on the first judgment to apply on his present sentence. Since the maximum sentence permissible is ten years, he is entitled to this and the prison authorities are directed to allow him proper credit for time actually served plus gained time, if any, for good behavior. State v. Weaver, 264 N.C. 681, 142 S.E.2d 633.
The Clerk of the Supreme Court shall forward a certified copy of this opinion to each of the following: (1) Clerk of Superior Court of Mecklenburg County (2) North Carolina Prison Department, and (3) Williams.
The petitioner further claims that he is entitled to credit for the time spent while in custody in default of bond awaiting his second trial. This claim is denied under the authority of State v. Weaver, supra.
The defendant now claims that he did not seek a second trial, but the record does not support him. This claim was not urged in his previous case on appeal. Also, the order resulting in his second trial recited that "he sought a new trial" and orders that he "be granted a new trial". No objection was taken at the time and his present position appears to be an after-thought.
The previous appeal disposed of the other matters sought to be presented.
Modified and affirmed.