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North Carolina v. Neeley

Filed: May 4, 1982.

STATE OF NORTH CAROLINA
v.
TOMMY LEE NEELEY



Appeal by defendant from Long, Judge. Judgment entered 10 April 1981 in Superior Court, Wilkes County. Heard in the Court of Appeals 6 April 1982.

Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.

Martin

Defendant's assignments of error attack the validity of the judgment entered 7 September 1979. Defendant did not appeal from that judgment when entered, but now attacks that judgment upon the revocation of his probation. Defendant first argues that there was nothing in the record of his guilty plea to show whether defendant was indigent, whether he was represented by counsel or whether he made a knowing and intelligent waiver of counsel. Defendant further argues that the statute under which he was originally convicted, N.C. Gen. Stat. § 14-322, did not apply to him because it applies only to legitimate, not illegitimate children. This case is controlled by State v. Noles, 12 N.C. App. 676, 184 S.E.2d 409 (1971). Here as in Noles, the defendant tries to attack collaterally the validity of the original judgment where his sentence was suspended, in an appeal from the revocation of that suspension. "When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time." State v. Noles, 12 N.C. App. at 678, 184 S.E.2d at 410 (1971); State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970). The Court in Noles held that questioning the validity of the original judgment where sentence was suspended, on appeal from an order activating the sentence, is an impermissible collateral attack. The proper procedure which provides the defendant adequate opportunity for adjudication of claimed deprivations of constitutional rights is under Article 89, Post-Trial Relief, N.C. Gen. Stat. § 15A-1411, et seq. See State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968).

The order of the trial court is

Affirmed.

Disposition

Affirmed.

19820504

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