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Habitual Felon

Feb 27, 2020

Do-over to fix habitual felon indictment wasn’t prejudicial

  A judge’s decision to postpone sentencing so prosecutors could correct an error in the indictment they’d planned to use to establish that a defendant was a habitual felon didn’t prejudice the defendant “despite the highly irregular nature of the proceedings and the grossly disproportionate sentence that resulted,” a divided North Carolina Court of Appeals […]

Aug 21, 2018

Criminal Practice – Habitual Felon Indictment – Lesser Included Offenses

Since an indictment for an offense includes all the lesser degrees of the same crime, it was permissible for a habitual felon indictment to allege that defendant had committed armed robbery but been convicted of common law robbery. We reverse the Court of Appeals’ decision that the habitual felon indictment in this case was fatally […]

Oct 8, 2015

Criminal Practice – Habitual Felon – First Impression – Extra Conviction – Witness Credibility – Burning Personal Property – ‘Bedding’

State v. Jefferies (Lawyers Weekly No. 15-07-0955, 16 pp.) (Chris Dillon, J.) Appealed from Cleveland County Superior Court (Richard Boner, J.) N.C. App. Holding: Where (1) the habitual felon indictment identified three predicate felonies, (2) the trial court instructed the jury on four felonies, and (3) it is impossible to tell whether any of the […]

May 6, 2015

Criminal Practice — Habitual Felon – Consecutive Sentences – Firearm – BB Gun – Conspiracy

State v. Duffie (Lawyers Weekly No. 15-07-0402, 15 pp.) (Mark Davis, J.) Appealed from Pitt County Superior Court (Robert Hobgood, J.) N.C. App. Holding: Because defendant was not already serving a sentence at the time of the sentencing hearing, the trial court was incorrect in its belief that G.S. § 14-7.6 mandated consecutive sentences in […]

Dec 18, 2014

Criminal Practice — Sentencing – Consecutive Sentences – Habitual Felon

State v. Jarman (Lawyers Weekly No. 14-07-1177, 12 pp.) (Linda McGee, Ch. J.) Appealed from Craven County Superior Court (John Nobles Jr., J.) N.C. App. Holding: The plain meaning of the last sentence of G.S. § 14-7.6 requires that a term of imprisonment imposed pursuant to a conviction as a habitual felon must “run consecutively […]

Jun 7, 2013

Criminal Practice – Attorneys – Motion to Withdraw – Communications Breakdown

State v. Gentry Where any breakdown in communication between defendant and his assigned counsel stemmed largely from defendant’s own behavior, and where defendant has failed to show that these alleged difficulties in communication resulted in a deprivation of his right to the effective assistance of counsel, the trial court did not err by declining to appoint substitute counsel.

Dec 6, 2012

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

State v. Shaw 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 a[...]

Oct 21, 2011

Criminal Practice – Sentencing – Habitual Felon – Habitual Misdemeanor Assault

State v. HollowayDefendant was indicted and convicted on two counts of habitual misdemeanor assault, a substantive crime and a class H felony. Defendant was also indicted and convicted on two counts of attaining habitual felon status as defined in G.S. § 14-7.1. Therefore, defendant was properly sentenced as a class C felon. We affirm defendant’s two consecutive sentences of 108 to [...]

Aug 8, 2011

Criminal Practice – Sentencing — Habitual Felon – Possession of a Firearm by a Felon – Underlying Conviction – Constructive Possession – Search & Seizure

State v. Best Defendant was convicted of felonious breaking and entering in 1988. Later, he was found in possession of a firearm. The 1988 B&E conviction can be used both (1) as the underlying felony in convicting defendant of possession of a firearm by a felon and (2) to calculate defendant’s prior record level and thus lengthen his sentence for possession of a firearm by a felon. [...]

Jul 25, 2011

Criminal Practice – Sentencing – Appeals – Prior Record Level – Habitual Felon 

State v. Mungo Defendant pled guilty, but he contends that (1) “there was insufficient evidence that ... [defendant] understandingly and knowingly entered his plea;”; (2) there was no admissible evidence to support the award of restitution; (3) his prior record level was calculated incorrectly; (4) he was denied effective assistance of counsel due to the trial court’s denial of [...]

Mar 4, 2011

Criminal Practice – Search & Seizure – Reasonable Expectation of Privacy – Habitual Felon – Prejudice – Clerical Error

State v. Eaton. (Lawyers Weekly No. 11-07-0221, 20 pp.) (Donna S. Stroud, J.) Appealed from Rowan County Superior Court. (W. Erwin Spainhour, J.) N.C. App. Click here for the full text of the opinion. Holding: Where the defendant had discarded a plastic bag on public property and had not been seized at the time of […]

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