Criminal Practice – Habitual Felon Status – Predicate Felonies – Habitual Misdemeanor Assault – Statutory Amendment – Effective Date – Subject Matter Jurisdiction

State v. Shaw (Lawyers Weekly No. 12-07-1175, 14 pp.) (Sam Ervin IV, J.) Appealed from Durham County Superior Court (Paul Gessner, J.) N.C. App.

Holding: Even though a defendant may be sentenced as a habitual felon at the time he is convicted of habitual misdemeanor assault, a prior habitual misdemeanor assault conviction may not be used as a predicate felony to establish that a convicted defendant has attained habitual felon status. G.S. § 14-33.2 specifically provides, “A conviction under this section shall not be used as a prior conviction for any other habitual offense statute.”

We vacate defendant’s conviction of attaining habitual felon status and remand for re-sentencing.

The language upon which we rely in reaching our conclusion was added to § 14-33.2 in 2004. Since the present case involves a substantive offense that was committed after the effective date of the 2004 amendments, defendant was not subject to being sentenced as a habitual felon based, in part, on his prior conviction for habitual misdemeanor assault.

The habitual felon indictment failed to adequately allege that defendant had attained habitual felon status. This deprived the trial court of jurisdiction to sentence defendant as a habitual felon. The judgment must be vacated.