State v. Kirkpatrick

365 S.E.2d 640, 89 N.C. App. 353, 1988 N.C. App. LEXIS 277

• Court: Court of Appeals of North Carolina
• Decided: March 15, 1988
• Docket: 8715SC864
• Status: Published

Opinion

WELLS, Judge.

Under his sole assignment of error, defendant contends that the trial court erred in increasing defendant’s sentence on resen-tencing from three years to fifteen years, relying on N.C. Gen. Stat. § 15A-1335 (1983), which is as follows:

Resentencing after appellate review. Where a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence ....

We disagree.

While G.S. § 15A-1335 has been interpreted to prohibit the trial court from imposing a more severe sentence because of reweighing factors in aggravation or because of finding new factors in aggravation, see State v. Williams, 74 N.C. App. 728, 329 S.E. 2d 709 (1985), where the trial court is required by statute to impose a particular sentence (on resentencing) G.S. § 15A-1335 does not apply to prevent the imposition of a more severe sentence. N.C. Gen. Stat. § 14-7.6 (1986) provides, in pertinent part, as follows:

Sentencing of habitual felons. When an habitual felon . . . shall commit any felony under the laws of the State of North Carolina, he must, upon conviction ... be sentenced as a Class C felon ....

See also State v. Aldridge, 67 N.C. App. 655, 314 S.E. 2d 139 (1984). Pursuant to the provisions of G.S. § 15A-1340.4(f)(l) (1983), the presumptive sentence for a Class C felon is fifteen years.

For the reasons stated, we hold that the trial court properly resentenced defendant to a term of fifteen years, and that the judgment of the trial court must be and is

Affirmed.

Judges Eagles and Greene concur.