State v. Harris

Court of Appeals of North Carolina

State v. Harris

310 S.E.2d 120, 65 N.C. App. 816, 1984 N.C. App. LEXIS 2780

CourtCourt of Appeals of North Carolina

DecidedJanuary 3, 1984

Docket8217SC1328

StatusPublished

Cited by2 cases

This text of 310 S.E.2d 120 (State v. Harris) 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. Harris, 310 S.E.2d 120, 65 N.C. App. 816, 1984 N.C. App. LEXIS 2780 (N.C. Ct. App. 1984).

Pincite

Opinion

PHILLIPS, Judge.

In sentencing the defendant the Fair Sentencing Act was not complied with and this matter is remanded to the trial court for re-sentencing.

Pecuniary gain is inherent in the crime of larceny, which the Legislature no doubt took into account when establishing a presumptive sentence for it, and the court erred in using that fact to increase defendant’s sentence. State v. Huntley, 62 N.C. App. 577, 303 S.E. 2d 330 (1983).

It was also error to use as an aggravating factor that the crimes involved great monetary value, because the only evidence of value that was before the court was the evidence that was necessary to show that the felony larcenies charged had been committed. State v. Simpson, 61 N.C. App. 151, 300 S.E. 2d 412 (1983).

Too, since the only reference to defendant’s prior convictions was a statement by the District Attorney that defendant had “a record of prior convictions,” the defendant’s contention that this aggravating factor was not properly established is also well taken. It was not even established that the convictions were pun *818 ishable by more than sixty days’ confinement, as the statute requires. While the methods of proving such convictions stated in G.S. 15A-1340.4(e) are not exclusive, State v. Massey, 59 N.C. App. 704, 298 S.E. 2d 63 (1982), proof of some kind is still necessary and a statement by the District Attorney, standing alone, is not proof.

Finally, since defendant’s evidence that restitution was made to the victims of his larcenies was unrefuted and apparently recognized by the State to be true, it was error for the court not to find a mitigating factor to that effect. State v. Wood, 61 N.C. App. 446, 300 S.E. 2d 903, rev. denied, 308 N.C. 547, 302 S.E. 2d 884 (1983).

Remanded for re-sentencing.

Chief Judge VAUGHN and Judge WHICHARD concur.

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PHILLIPS, Judge.

In sentencing the defendant the Fair Sentencing Act was not complied with and this matter is remanded to the trial court for re-sentencing.

Pecuniary gain is inherent in the crime of larceny, which the Legislature no doubt took into account when establishing a presumptive sentence for it, and the court erred in using that fact to increase defendant’s sentence. State v. Huntley, 62 N.C. App. 577, 303 S.E. 2d 330 (1983).

It was also error to use as an aggravating factor that the crimes involved great monetary value, because the only evidence of value that was before the court was the evidence that was necessary to show that the felony larcenies charged had been committed. State v. Simpson, 61 N.C. App. 151, 300 S.E. 2d 412 (1983).

Too, since the only reference to defendant’s prior convictions was a statement by the District Attorney that defendant had “a record of prior convictions,” the defendant’s contention that this aggravating factor was not properly established is also well taken. It was not even established that the convictions were pun *818 ishable by more than sixty days’ confinement, as the statute requires. While the methods of proving such convictions stated in G.S. 15A-1340.4(e) are not exclusive, State v. Massey, 59 N.C. App. 704, 298 S.E. 2d 63 (1982), proof of some kind is still necessary and a statement by the District Attorney, standing alone, is not proof.

Finally, since defendant’s evidence that restitution was made to the victims of his larcenies was unrefuted and apparently recognized by the State to be true, it was error for the court not to find a mitigating factor to that effect. State v. Wood, 61 N.C. App. 446, 300 S.E. 2d 903, rev. denied, 308 N.C. 547, 302 S.E. 2d 884 (1983).

Remanded for re-sentencing.

Chief Judge VAUGHN and Judge WHICHARD concur.

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Bluebook (online)

310 S.E.2d 120, 65 N.C. App. 816, 1984 N.C. App. LEXIS 2780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harris-ncctapp-1984.

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