State v. Irby

BROCK, Chief Judge.

His honor failed to make clear entries in the case. In the Transcript of Plea defendant was asked if he understood that he was charged with breaking or entering. In adjudicating the voluntariness of the plea, his honor found that defendant pleaded guilty to breaking and entering. In the judgment and commitment his honor found and adjudicated that defendant pleaded guilty to breaking, entering and larceny in violation of G.S. 14-54 and G.S. 14-70. Defendant was sentenced to a term of not less than 3 nor more than 5 years. The sentence appears to have been entered upon two offenses, but it appears that defendant pleaded guilty to only one.

While it is true that the sentence imposed would not be excessive if entered as to either charge, nevertheless, defendant *263is entitled to have the record correctly reflect the offense for which he was sentenced. If he was sentenced for both offenses, he is entitled to have the record clearly show that fact. Upon this record it is doubtful that defendant would be able to successfully plead and show former jeopardy upon the charge of larceny. He is entitled to protection from a second prosecution for the same offense.

Because of the conflicts in the orders entered by the trial judge, this Court, in its discretion, vacates the judgment and remands the cause to the Superior Court in Stanly County with directions that the presiding judge strike the plea of guilty and permit defendant to plead again to the bill of indictment.

Cause remanded with directions.

Judges Hedrick and Vaughn concur.