An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-551

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

STATE OF NORTH CAROLINA

    v .                             Forsyth County
                                No. 00 CRS 055022
JAMES CAREY WOOD

    Appeal by defendant from judgment dated 13 December 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 5 February 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

    The Dummit Law Firm, by E. Clarke Dummit, for defendant- appellant.

    BRYANT, Judge.

    James Carey Wood (defendant) appeals a judgment dated 13 December 2002 entered consistent with a jury verdict finding him guilty of habitual impaired driving.
    The evidence at trial indicates that at about 1:00 a.m. on 26 August 2000, defendant drove his vehicle to a checkpoint on Healey Drive in Forsyth County, North Carolina. At the checkpoint, police officers stopped all oncoming vehicles and asked drivers to produce drivers' licenses and registrations. When defendant stopped his vehicle at the checkpoint and Officer S.D. Mitchell asked for his driver's license and registration, defendant stated his license was suspended. Upon smelling a strong odor of alcohol from defendantand observing defendant's speech to be slurred, slow, and mumbled, Officer Mitchell requested defendant to pull over. Three sobriety tests were administered to defendant, all of which he failed. Defendant was arrested and charged with driving while impaired, driving while license revoked, and felonious habitual driving while impaired.
    In an order filed 12 February 2002 denying defendant's motion to dismiss the charge of habitual driving while impaired, the trial court found:
        2.     . . . [O]n September 12, 2000 . . . defendant appeared in Forsyth County Criminal District Court . . . to answer the misdemeanor charges pending against him;

        3.     . . . [D]efendant . . . tendered a plea of guilty to misdemeanor Driving while Impaired. The State dismissed the misdemeanor Driving while License Revoked charge;

        4.    . . . [A]fter . . . defendant tendered his plea to the [c]ourt[, the State] realized that . . . the felony Habitual Driving while Impaired charge was still pending. Based upon this realization [the State] requested the matter be continued until the afternoon Session;

        5.    . . . [T]he Honorable Chester C. Davis, District Court Judge presiding at the hearing, allowed the continuance and directed that the parties return to [c]ourt at 2:15 p.m. for further proceedings;

        6.    . . . [W]hen the parties returned to [c]ourt that afternoon [the State] informed the [c]ourt that . . . defendant had a felony charge pending based upon the same offense and that the State was consequently taking a voluntary dismissal of the misdemeanor charge;

        7.    . . . [C]ounsel for . . . defendant objected to the dismissal on the grounds that . . . defendant had tendered his plea ofguilty and that the [c]ourt had accepted . . . defendant's plea;

        8.    . . . [D]efendant's objection was overruled, but that Judge Davis instructed the Clerk to note on the judgment that the State dismissed the offense “after entry of plea”;

        9.    . . . [P]rior to the State taking a voluntary dismissal of the misdemeanor Driving while Impaired offense no witness had been sworn, no testimony had been elicited, the State had not presented a factual basis for the plea and neither party had presented evidence to the [c]ourt;

        10    . . . [U]pon hearing that . . . [d]efendant tendered a plea of guilty to the misdemeanor Driving while Impaired offense, the clerk erroneously noted a verdict of guilty on the Judgment and erroneously recorded a verdict of guilty in the courtroom minutes;

        11.    . . . [T]he courtroom clerk erroneously made these entries in anticipation of proceedings consistent with a guilty plea;

        12.    . . . [T]he clerk also noted that the case was voluntarily dismissed on the Judgment and noted the voluntary dismissal on the courtroom minutes;

        13.    . . . Judge Davis signed the Judgment prepared by the courtroom clerk without realizing the ambiguity reflected thereon.

    The trial court then concluded:

        1.    . . . [T]he certified copies of the District Court Judgment and courtroom minutes relating to the [charge of] misdemeanor Driving while Impaired found in file number 00 CR 55014 are ambiguous in that they reflect both a verdict of guilty and a voluntary dismissal by the State;

        2.    . . . [I]t was necessary and proper for this [c]ourt to hear testimony from witnesses present at the District Court hearing of the misdemeanor offense in order that this [c]ourt attempt to explain the ambiguity reflected bythe documents;

        3.    . . . [T]he State did not offer and this [c]ourt did not consider evidence and testimony at the hearing of . . . [d]efendant's Motion to Dismiss for the purpose of collaterally attacking any ruling or finding of the District Court, but rather for the purpose of explaining the ambiguity reflected by the documents;

        4.    . . . [T]he Honorable Chester C. Davis did not hear testimony or accept evidence at the September 12, 2000 hearing of . . . defendant's misdemeanor Driving while Impaired offense, did not adjudge . . . defendant guilty of that offense, and did not impose any sentence relating to that offense;

        5.    . . . [J]eopardy did not attach at the September 12, 2000 hearing of the misdemeanor charge of Driving while Impaired, and that prosecution of the present felonious Habitual Driving while Impaired offense is not barred by the double jeopardy clauses of the North Carolina or United States Constitutions.

    The trial court also denied defendant's motion to suppress evidence obtained from the stop of defendant and his vehicle at the checkpoint. On 10 December 2002, defendant was found guilty of habitual impaired driving.

_________________________

    The issues are whether the trial court erred in denying defendant's: (I) motion to dismiss; and (II) motion to suppress.
I

    Defendant first argues the trial court's denial of his motion to dismiss the charge of habitual driving while impaired violates the prohibition against double jeopardy. We disagree.
    Double jeopardy prohibits
        a second prosecution for the same offenseafter conviction[] . . . . Additionally, the Supreme Court of the United States has noted that “[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.”

State v. Wallace, 345 N.C. 462, 467, 480 S.E.2d 673, 676 (1997) (citations omitted). When a plea of guilty tendered by the defendant is not accepted, the prohibition of double jeopardy does not apply. Id. Here, the trial court, in denying the pre-trial motion to dismiss, made numerous findings of fact and concluded jeopardy did not attach.
    Defendant has failed to assign error to any of the findings of fact, therefore, these findings are presumed correct and are binding on appeal. State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d 702, 703 (1990). In turn, our review is limited to whether these findings support the trial court's conclusions of law. Id.
    The trial court conducted a hearing and received testimony from Judge Davis and the courtroom clerk. The trial court's findings, based on testimony and other evidence, indicate that after defendant tendered a guilty plea to the charge of driving while impaired, the “clerk erroneously noted a verdict of guilty on the Judgment and erroneously recorded a verdict of guilty in the courtroom minutes . . . in anticipation of proceedings consistent with a guilty plea.” The findings further indicate the following: The State then requested a continuance, which Judge Davis granted. At the end of the continuance, the State voluntarily dismissed the charge. “[P]rior to the State taking a voluntary dismissal of the[charge] no witness had been sworn, no testimony had been elicited, the State had not presented a factual basis for the plea and neither party had presented evidence to [Judge Davis].” “Judge Davis signed the Judgment prepared by the . . . clerk without realizing the ambiguity thereon.” These findings are supported by the testimony of Judge Davis that the State would not have been allowed to dismiss a charge after he had accepted a guilty plea. Therefore, the fact that the State was allowed to dismiss the DWI charge indicates Judge Davis had not accepted the guilty plea tendered by defendant.
    In sum, the trial court's findings support the conclusion that the plea of guilty tendered by the defendant was not accepted by the district court on 12 September 2000. We hold, therefore, that the principle of double jeopardy does not apply here. This assignment of error is overruled.
II

    Defendant next contends the trial court erred in denying his motion to suppress evidence obtained as result of the checkpoint stop. Particularly, defendant argues the checkpoint and detention of every vehicle without reasonable suspicion violated N.C. Gen. Stat. § 20-16.3A and the Fourth Amendment of the United States Constitution.
    N.C. Gen. Stat. § 20-16.3A provides:
        This section does not limit the authority of a law-enforcement officer or agency to conduct a license check independently or in conjunction with the impaired driving check, to administer psychophysical tests to screen for impairment, or to utilize roadblocks or other types ofvehicle checks or checkpoints that are consistent with the laws of this State and the Constitution of North Carolina and of the United States.

N.C.G.S. § 20-16.3A (2003) (emphasis added).
    The United States Supreme Court has held that random stops of vehicles to check for drivers' licenses and registrations violates the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673 (1979). However, the Prouse Court noted that the government is not precluded “from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Id. at 663, 59 L. Ed. 2d at 673-74.
    In light of Prouse, our Courts have consistently held checkpoints for drivers' licenses and registrations where all vehicles were stopped are constitutional under the Fourth Amendment. See State v. Mitchell, 358 N.C. 63, 68, 592 S.E.2d 543, 546 (2004) (“Because police officers are not constitutionally mandated to conduct driver's license checkpoints pursuant to written guidelines; because Officer Falls received sufficient supervisory authority to conduct the checkpoint; and because the officers stopped all oncoming traffic at the checkpoint, we conclude that the checkpoint was constitutional.”); State v. Vancamp, 150 N.C. App. 347, 351, 562 S.E.2d 921, 925 (2002) (checkpoint for drivers' licenses and registrations where all vehicles were stopped was constitutional); State v. Tarlton, 146 N.C. App. 417, 421-23, 553 S.E.2d 50, 53-54 (2001); State v.Grooms, 126 N.C. App. 88, 90, 483 S.E.2d 445, 446 (1997) (checkpoint for drivers' licenses, stolen vehicles, and individuals with outstanding arrest warrants where all vehicles were stopped was constitutional); State v. Sanders, 112 N.C. App. 477, 480, 435 S.E.2d 842, 844 (1993) (checkpoint for drivers' licenses where all vehicles were stopped was constitutional).
    At the hearing on defendant's motion to suppress, Officer Mitchell testified that, as authorized by her supervisor, all vehicles were stopped at the checkpoint for drivers' licenses and registrations according to the police department's written guidelines. Officer Mitchell explained that the checkpoint was established at a location with a “heavy flow of traffic” to check for drivers' licenses and vehicle registrations. Defendant has conceded all vehicles were stopped at the checkpoint.
    Based on the foregoing, we conclude the checkpoint, established to check for drivers' licenses and registrations of all vehicles, was constitutional. As such, the trial court did not err in denying defendant's motion to suppress.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***