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Tag Archives: Aggravating Factors

Criminal Practice – Guilty Plea – Aggravating Factors – Aggravated Sentence – Restitution – Vacated (access required)

State v. Rico Even though the parties’ plea agreement included a sentence in the aggravated range, defendant’s original aggravated sentence was invalid as a matter of law because the trial judge imposed the sentence simply because it was called for by the plea agreement. The judge failed to make any findings as to aggravating factors and failed to exercise his discretion in determining whether an aggravated sentence was appropriate, as required by the Structured Sentencing Act. The judgment against defendant is vacated and remanded.

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Criminal Practice – Attempted Murder – Constitutional – Confrontation Clause – Unavailable Witness – Probable Cause Hearing Testimony – Intent to Kill – Serious Injury – Sentencing – Aggravating Factors (access required)

State v. Ross At the probable cause hearing, defendant was represented by counsel (who was one of his trial counsel), he had the same motive to cross-examine victim Besies as at trial, and his counsel did in fact cross-examine Besies; therefore, defendant had an adequate opportunity to cross-examine Besies. Since Besies was unavailable to testify at trial, the trial court did not violate defendant’s right to confront the witnesses against him when the court admitted Besies’ testimony from the probable cause hearing into evidence.

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Criminal Practice – Speeding to Elude Arrest – Jury Unanimity — Aggravating Factors – Reckless Driving – Undefined (access required)

State v. Banks In order to elevate operation of a motor vehicle to elude arrest from a misdemeanor to a felony, the jury must find two of the eight aggravating factors listed in G.S. § 20-141.5(b). The state presented evidence of three of those factors, and the trial court’s instructions did not require the jury to be unanimous with regard to which two factors were present. Nevertheless, the jury was unanimous in finding that defendant was guilty of felonious operation of a motor vehicle to elude arrest, and this satisfied the N.C. Constitution’s requirement of jury unanimity. We find no error in defendant’s conviction of felonious operation of a motor vehicle to elude arrest.

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Criminal Practice – Sentencing – Aggravating Factor – Law Enforcement Victim – Defendant’s Knowledge – Second Degree Murder – Miranda – Batson (access required)

State v. Carter The aggravating factor set out in G.S. § 15A-1340.16(d)(6) applies when the offense is committed against a law enforcement officer “engaged in the performance of that person’s official duties or because of the exercise of that person’s official duties.” Since the state proved that the victim was engaged in the performance of his duties as a law enforcement officer, it did not need to show that defendant knew the victim was a law enforcement officer. We find no error in defendant’s conviction of second-degree murder.

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