State v. Callicutt

Supreme Court of North Carolina

State v. Callicutt

308 S.E.2d 333, 309 N.C. 626, 1983 N.C. LEXIS 1452

CourtSupreme Court of North Carolina

DecidedNovember 3, 1983

DocketNo. 322A83

StatusPublished

This text of 308 S.E.2d 333 (State v. Callicutt) is published on Counsel Stack Legal Research, covering Supreme Court 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. Callicutt, 308 S.E.2d 333, 309 N.C. 626, 1983 N.C. LEXIS 1452 (N.C. 1983).

Pincite

Opinion

PER CURIAM.

The Court of Appeals determined that the trial court erred in the sentencing phase of the defendant’s trial and remanded for resentencing. Following a hearing pursuant to the Fair Sentencing Act, the trial court found as one of the aggravating factors that the defendant had a prior conviction for a criminal offense punishable by more than sixty days confinement. The Court of Appeals held that this aggravating factor may not be considered until the State presents evidence as to whether the defendant was indigent at the time of this prior conviction and if so, whether he was represented by counsel.

This holding is erroneous in light of our decision in State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983). There we held that the State does not have the burden “to raise and prove nonindigency and representation by counsel or waiver of counsel in order to support a finding that the defendant had a prior conviction or convictions.”

The decision of the Court of Appeals is reversed and the case is remanded to that court with instructions that it enter an order affirming the order of the trial court.

Reversed and remanded.

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PER CURIAM.

The Court of Appeals determined that the trial court erred in the sentencing phase of the defendant’s trial and remanded for resentencing. Following a hearing pursuant to the Fair Sentencing Act, the trial court found as one of the aggravating factors that the defendant had a prior conviction for a criminal offense punishable by more than sixty days confinement. The Court of Appeals held that this aggravating factor may not be considered until the State presents evidence as to whether the defendant was indigent at the time of this prior conviction and if so, whether he was represented by counsel.

This holding is erroneous in light of our decision in State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983). There we held that the State does not have the burden “to raise and prove nonindigency and representation by counsel or waiver of counsel in order to support a finding that the defendant had a prior conviction or convictions.”

The decision of the Court of Appeals is reversed and the case is remanded to that court with instructions that it enter an order affirming the order of the trial court.

Reversed and remanded.

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Bluebook (online)

308 S.E.2d 333, 309 N.C. 626, 1983 N.C. LEXIS 1452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-callicutt-nc-1983.

Opinion

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