State v. Sparks

641 S.E.2d 339, 182 N.C. App. 45, 2007 N.C. App. LEXIS 488
CourtCourt of Appeals of North Carolina
DecidedMarch 6, 2007
DocketCOA06-170
StatusPublished
Cited by6 cases

This text of 641 S.E.2d 339 (State v. Sparks) 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. Sparks, 641 S.E.2d 339, 182 N.C. App. 45, 2007 N.C. App. LEXIS 488 (N.C. Ct. App. 2007).

Opinions

LEVINSON, Judge.

The State appeals from the trial court’s order granting Adam Edward Sparks, Jr.’s (defendant) motion to dismiss. We reverse.

On 29 November 1999, defendant pled guilty to indecent liberties with a child, crimes against nature, and sexual activity by a substitute parent. Defendant’s guilty plea required defendant to register as a sex offender under N.C. Gen. Stat. § 14-208.7.

On 24 February 2003, the North Carolina Department of Correction granted defendant early release after he had served thirty-nine months. Defendant was placed on intensive supervision in Catawba County for six months. Defendant registered as a sex offender in Catawba County on 24 February 2003.

[46]*46On 4 December 2003, defendant’s supervising officer, Gary Blalock, completed a post-release supervision violation report alleging defendant: (1) left his residence in Hickory on 27 November 2003 without notifying his probation officer; (2) failed to comply with the sex offender treatment program due to five unexcused absences; and (3) failed to pay $480.00 for his sex offender treatment program.

On 1 July 2004, defendant’s early release was revoked because he was “not adjusting satisfactorily or [had] violated conditions of [supervision].” The remaining portion of defendant’s original sentence was activated on 1 July 2004 pursuant to N.C. Gen. Stat. § 15A-1373. Defendant was incarcerated from 5 June 2004 through his final, unconditional release on 20 December 2004.

While defendant was incarcerated, a grand jury indicted defendant for failure to comply with sex offender registration in violation of N.C. Gen. Stat. § 14-208.11. This August 2004 indictment alleged defendant failed to register with the Sheriff within ten days after a change of address on 13 December 2003. On 24 October 2005, the trial court dismissed the charge, -concluding that “to prosecute the Defendant for the offense alleged in the above captioned file number would place the Defendant in jeopardy twice for the same behavior.” In its order, the trial court found that defendant’s actions — leaving his residence and not making his whereabouts known — were the grounds not only of the parole revocation report which led to his return to prison, but also of the August 2004 indictment for failing to register as a sex offender. The State appeals.

The State contends the prohibitions against double jeopardy are inapplicable to the instant facts and that the trial court erred by granting defendant’s motion to dismiss. Defendant counters that his indictment under N.C. Gen. Stat. § 14-208.11(a)(2) violates the double jeopardy provisions of the United States and North Carolina Constitutions because the elements contained in defendant’s indictment pursuant to N.C. Gen. Stat. § 14-208.11(a)(2) are also the “elements” for which defendant’s post-release supervision was terminated after a parole hearing. Defendant also asserts that his actions in “leaving his residence” and in “not making his whereabouts known” serve as the grounds for both the indictment under N.C. Gen. Stat. § 14-208.11(a)(2) and parole violation report, and that now allowing him to be prosecuted for the indictment would constitute multiple punishments for the same offense in accordance with Blockburger v. U.S., 284 U.S. 299, 76 L. Ed. 306 (1932), and State v. [47]*47Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). We conclude that the constitutional protections of double jeopardy are inapplicable to parole revocation proceedings, and therefore reverse the order of the trial court.

The Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution prohibit double jeopardy. U.S. Const, amend. V; N.C. Const, art. I, § 19. “The Double Jeopardy Clause . . . provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ ” United States v. Dixon, 509 U.S. 688, 695-96, 125 L. Ed. 2d 556, 567 (1993) (quoting U.S. Const, amend. V). Under North Carolina Constitution Article I, section 19, “a person cannot be tried twice for the same offense[.]” State v. Mansfield, 207 N.C. 233, 236, 176 S.E. 761, 762 (1934); see N.C. Const, art. I, § 19 (“No person shall be taken, imprisoned, or disseized . . . but by the law of the land.”); see also State v. Urban, 31 N.C. App. 531, 534, 230 S.E.2d 210, 212 (1976) (prohibition against double jeopardy has long been regarded as part of the “law of the land” in North Carolina).

The United States Supreme Court established the test for double jeopardy as:

[Where] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger, 284 U.S. 304, 76 L. Ed. at 309 (internal quotation marks omitted). “The same-elements test, sometimes referred to as the Bloekburger’ test, inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696, 125 L. Ed. 2d at 568.

North Carolina has followed the United States Supreme Court’s “same elements” test from Bloekburger. See Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (“Where, as here, a single criminal transaction constitutes a violation of more than one criminal statute, the test to [48]*48determine if the elements of the offenses are the same is whether each statute requires proof of a fact which the others do not.”); State v. Perry, 305 N.C. 225, 232, 287 S.E.2d 810, 814 (1982) (North Carolina’s test “follows closely the test employed by the United States Supreme Court to determine whether certain activity constitutes two offenses or only one as set out in Blockburger.”'). “The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Monk, 132 N.C. App. 248, 252, 511 S.E.2d 332, 334 (1999) (citing State v. Ballenger, 123 N.C. App. 179, 180, 472 S.E.2d 572, 572-73 (1996)).

Here, defendant’s conditional release was revoked pursuant to N.C. Gen. Stat. § 15A-1373(d) (2005), providing “[i]f the parolee violates a condition at any time prior to the expiration or termination of the period, the [Parole] Commission... may revoke the parole as provided in G.S. 15A-1376 and reimprison the parolee[.]” Defendant was indicted in August 2004 pursuant to N.C. Gen. Stat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Hendricksen
809 S.E.2d 391 (Court of Appeals of North Carolina, 2018)
State v. Mead
Court of Appeals of North Carolina, 2014
State v. Chamberlain
753 S.E.2d 725 (Court of Appeals of North Carolina, 2014)
State v. Sparks
657 S.E.2d 655 (Supreme Court of North Carolina, 2008)
State v. Hernandez
655 S.E.2d 426 (Court of Appeals of North Carolina, 2008)
State v. Sparks
641 S.E.2d 339 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
641 S.E.2d 339, 182 N.C. App. 45, 2007 N.C. App. LEXIS 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sparks-ncctapp-2007.