By North Carolina Lawyers Weekly Staff
Published: December 6,2012
State v. Corkum Defendant served part of his prison sentence after violating his probation. Sometime after his release, defendant was held in custody for eight days pending another probation revocation hearing. When the remainder of his sentence was activated, he should have been given credit for those eight days.
By North Carolina Lawyers Weekly Staff
Published: November 13,2012
State v. Ogburn Where G.S. § 15A-1343 vests the trial court with authority to determine the length of the suspension of defendant’s driving privilege as a special condition of probation, such judicial authority cannot be delegated to defendant’s probation officer.
By North Carolina Lawyers Weekly Staff
Published: September 5,2012
U.S. v. Horton The 4th Circuit affirms a defendant’s conviction for possessing a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924, but vacates his life sentence because the district court erred in applying the murder cross-reference in the federal sentencing guidelines and in treating as relevant conduct a murder that occurred as part of an unrelated and uncharged offense arising from a fatal shooting during a home invasion.
By North Carolina Lawyers Weekly Staff
Published: August 23,2012
State v. Frederick Before defendant represented himself in a hearing on his motion to suppress evidence, as to possible sentences, the trial judge only warned defendant that he could go to prison for “a long, long time” and that a conviction would result in “a mandatory active prison sentence.”
By North Carolina Lawyers Weekly Staff
Published: August 22,2012
U.S. v. Powell The 4th Circuit denies post-conviction relief for a defendant’s 240-month sentence for conspiracy to distribute cocaine, enhanced due to defendant’s prior North Carolina drug conviction; the rule defendant advances from a 2010 U.S. Supreme Court case is not retroactively applicable to cases on collateral review, and defendant’s § 2255 motion is untimely.
By North Carolina Lawyers Weekly Staff
Published: August 15,2012
U.S. v. Gomez A district court erred in enhancing a defendant’s sentence for illegal reentry into the U.S. by determining her prior child abuse conviction to be an aggravated felony; the 4th Circuit joins the majority of its sister circuits and says the “modified categorical approach” for evaluating a defendant’s prior conviction as a crime of violence should be applied only to statutory offenses in which the statute itself is divisible.
By North Carolina Lawyers Weekly Staff
Published: July 25,2012
U.S. v. Davis A defendant who was incorrectly advised that he faced a 10-year maximum sentence on a firearm charge, instead of the correct 15-year mandatory minimum for a career offender, did not knowingly and intelligently waive his right to appeal in his plea agreement; the 4th Circuit declines to enforce the appeal waiver but nevertheless affirms the enhanced sentence.
By North Carolina Lawyers Weekly Staff
Published: July 19,2012
U.S. v. Worley The 4th Circuit affirms a 100-month prison sentence for a defendant convicted of methamphetamine manufacture and related crimes, but vacates certain special conditions of release restricting defendant’s access to family members, including his girlfriend and children, based on two 2000 state convictions for carnal knowledge of a child.
By North Carolina Lawyers Weekly Staff
Published: July 19,2012
U.S. v. Mobley An inmate convicted of possessing contraband, after he was discovered with a shank in his shoe, can be sentenced as a career offender because possession of the shank qualified as a crime of violence under the federal sentencing guidelines, the 4th Circuit says.
By North Carolina Lawyers Weekly Staff
Published: July 19,2012
U.S. v. Burgess The 4th Circuit affirms defendant’s conviction of receipt and possession of child pornography, but vacates a restitution order requiring defendant to pay $305,220 to “Vicki,” an identified victim; the district court did not make specific findings regarding the elements of restitution, as required under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. 2259, and the case is remanded for calculation of the loss this specific defendant caused the victim portrayed in the pornographic material possessed by defendant.
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Russell v. N.C. Department of Environment & Natural Resources Since the evidence indicated that, when plaintiffs’ lot was supposedly tested for septic tank suitability, the soil sample was apparently taken from a different lot, expert testimony was unnecessary to show professional malpractice. We affirm the Industrial Commission’s conclusion that defendant was negligent; however, we reverse the damage award and remand for further proceedings on this issue.
State v. Bean Although the state elicited evidence that defendant exercised her right to remain silent, given the other evidence of defendant’s guilt – her own admissions to a nurse, “I killed my husband just because I finally had enough of him” and “I’m guilty” and the victim’s fear that defendant would kill him – the prosecutor’s comments and questions regarding whether defendant mentioned self-defense prior to trial had little bearing on the jury finding defendant guilty.
State v. Primus Even though the list of the elements of attempted felonious larceny set out in State v. Weaver, 123 N.C. App. 276, 473 S.E.2d 362 (1996), included “falling short of the completed offense,” and even though the state proved that defendant completed the offense of felonious larceny, this does not require the conclusion that proof of the completed offense disproves the attempt to commit. The completed commission of a crime must of necessity include an attempt to commit the crime.
