State v. Bates

Court of Appeals of North Carolina

State v. Bates

334 S.E.2d 73, 76 N.C. App. 676, 1985 N.C. App. LEXIS 3918

CourtCourt of Appeals of North Carolina

DecidedSeptember 17, 1985

Docket8412SC1183

StatusPublished

Cited by6 cases

This text of 334 S.E.2d 73 (State v. Bates) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bates, 334 S.E.2d 73, 76 N.C. App. 676, 1985 N.C. App. LEXIS 3918 (N.C. Ct. App. 1985).

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Opinion

*678 HEDRICK, Chief Judge.

Defendant assigns error to the trial court’s aggravation of his sentence by its non-statutory finding that “The defendant left the victim dying in a field and did not seek to have help sent to him.” An aggravating factor can properly be found only if the defendant has exhibited some behavior which serves to “increase the offender’s culpability.” G.S. 15A-1340.3. It is error for an aggravating factor to be based on circumstances which are part of “the very essence” of a crime because “it can be presumed that the Legislature was guided by this unfortunate fact when it established presumptive sentences. . . .” State v. Higson, 310 N.C. 418, 424, 312 S.E. 2d 437, 441 (1984). The exceptional nature of a defendant “attempting to secure immediate medical attention for [his victim]” has been noted by the Supreme Court. State v. Bondurant, 309 N.C. 674, 694, 309 S.E. 2d 170, 183 (1983). We therefore conclude that the trial court erred in finding as an aggravating factor defendant’s failure to aid his victim.

The Supreme Court has ruled that “in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.” State v. Ahearn, 307 N.C. 584, 602, 300 S.E. 2d 689, 701 (1983). Since there must be a new sentencing hearing, we find it unnecessary to discuss defendant’s remaining assignments of error.

Remanded for resentencing.

Judges Arnold and Cozort concur.

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*678 HEDRICK, Chief Judge.

Defendant assigns error to the trial court’s aggravation of his sentence by its non-statutory finding that “The defendant left the victim dying in a field and did not seek to have help sent to him.” An aggravating factor can properly be found only if the defendant has exhibited some behavior which serves to “increase the offender’s culpability.” G.S. 15A-1340.3. It is error for an aggravating factor to be based on circumstances which are part of “the very essence” of a crime because “it can be presumed that the Legislature was guided by this unfortunate fact when it established presumptive sentences. . . .” State v. Higson, 310 N.C. 418, 424, 312 S.E. 2d 437, 441 (1984). The exceptional nature of a defendant “attempting to secure immediate medical attention for [his victim]” has been noted by the Supreme Court. State v. Bondurant, 309 N.C. 674, 694, 309 S.E. 2d 170, 183 (1983). We therefore conclude that the trial court erred in finding as an aggravating factor defendant’s failure to aid his victim.

The Supreme Court has ruled that “in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.” State v. Ahearn, 307 N.C. 584, 602, 300 S.E. 2d 689, 701 (1983). Since there must be a new sentencing hearing, we find it unnecessary to discuss defendant’s remaining assignments of error.

Remanded for resentencing.

Judges Arnold and Cozort concur.

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Bluebook (online)

334 S.E.2d 73, 76 N.C. App. 676, 1985 N.C. App. LEXIS 3918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bates-ncctapp-1985.

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