March 2, 1981
Subject:
Motor Vehicles; G.S. 20-28(b); Mandatory Punishment for Driving While License Permanently Revoked.
Requested By:
Honorable Samuel L. Osborne District Court Judge 23rd Judicial District
Questions:
- Is the minimum punishment of imprisonment for one year under G.S. 20-28(b) mandatory?
- May the minimum punishment of imprisonment for one year under G.S. 20-28(b) be suspended?
Conclusions:
- Yes.
- No.
G.S. 20-28(b) reads:
"(b) Any person whose license has been permanently revoked or permanently suspended, as provided in this Article, who shall drive any motor vehicle upon the highways of this State while such license is permanently revoked or permanently suspended shall be guilty of a misdemeanor and shall be imprisoned for not less than one year. This subsection shall not apply to any license revocations under G.S. 20-17.1; penalty for violation of G.S. 20-17.1 shall be applied as prescribed under G.S. 20-28(a)."
We are of the opinion that the court laid to rest the question of the court’s presumed "inherent" power to continue prayer for judgment on conditions or to suspend sentences where an active sentence is made mandatory by the General Assembly in In re Greene, 297 N.C. 305 (1 June 1979).
In In re Greene the court speaking to the mandatory sentencing requirements of G.S. 20-179, said:
"We hold that the courts of North Carolina do not have an "inherent" power to continue prayer for judgment on conditions or to suspend sentence where the sentence is made mandatory by the General Assembly."
The Court ordered that the mandatory sentencing provisions of G.S. 20-179 be invoked.
Rufus L. Edmisten Attorney General
William W. Melvin Deputy Attorney General