State v. Stinson

Supreme Court of North Carolina

State v. Stinson

314 S.E.2d 546, 310 N.C. 737, 1984 N.C. LEXIS 1689

CourtSupreme Court of North Carolina

DecidedApril 30, 1984

DocketNo. 25A84

StatusPublished

This text of 314 S.E.2d 546 (State v. Stinson) 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. Stinson, 314 S.E.2d 546, 310 N.C. 737, 1984 N.C. LEXIS 1689 (N.C. 1984).

Pincite

Opinion

PER CURIAM.

The Court of Appeals correct ly determined the issues brought forward in defendant’s brief. This case is distinguishable from State v. Isom, 65 N.C. App. 223, 309 S.E. 2d 283 (1983), relied on by Judge Becton in his dissenting opinion. In Isom the Court of Appeals concluded that it was improper for the trial judge to find as aggravating circumstances both that a defendant had a prior conviction punishable by more than sixty days’ confinement and that he had served a prior prison term for that conviction. In the instant case the period during which defendant’s sentence for a prior felony conviction was suspended had not yet expired at the time he committed the offense for which he was being tried. It was proper, therefore, for the trial court to consider both the fact of his prior conviction and the fact that the period for which the sentence was suspended had not yet expired as aggravating circumstances.

We find, however, error which, although not assigned by defendant, does appear on the face of the judgment in both the burglary and the attempted rape cases. In both cases the trial court found as aggravating circumstances: “The sentence pronounced by the court is necessary to deter others from the commission of a similar offense” and “a lesser sentence than that pronounced by the court would unduly depreciate the seriousness of the defendant’s crime.” It was error for the trial court to find these aggravating circumstances. State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983).

For this error the judgments imposed against defendant in both the burglary and the attempted rape cases must be vacated and the matter remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).

Insofar as the Court of Appeals found no error in defendant’s trial and no error on the points it discussed with regard to defendant’s sentences, the decision is affirmed. For the reasons stated herein, however, the Court of Appeals’ decision finding no error in the sentencing proceeding is reversed; the sentences imposed upon defendant are vacated; and the case is remanded to the Court of Appeals for further remand by it to Cabarrus County Superior Court for resentencing. The result is that the Court [739]*739of Appeals’ decision is affirmed in part and reversed in part, and the case remanded for resentencing.

Affirmed in part;

Reversed in part; and

Remanded for resentencing.

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PER CURIAM.

The Court of Appeals correct ly determined the issues brought forward in defendant’s brief. This case is distinguishable from State v. Isom, 65 N.C. App. 223, 309 S.E. 2d 283 (1983), relied on by Judge Becton in his dissenting opinion. In Isom the Court of Appeals concluded that it was improper for the trial judge to find as aggravating circumstances both that a defendant had a prior conviction punishable by more than sixty days’ confinement and that he had served a prior prison term for that conviction. In the instant case the period during which defendant’s sentence for a prior felony conviction was suspended had not yet expired at the time he committed the offense for which he was being tried. It was proper, therefore, for the trial court to consider both the fact of his prior conviction and the fact that the period for which the sentence was suspended had not yet expired as aggravating circumstances.

We find, however, error which, although not assigned by defendant, does appear on the face of the judgment in both the burglary and the attempted rape cases. In both cases the trial court found as aggravating circumstances: “The sentence pronounced by the court is necessary to deter others from the commission of a similar offense” and “a lesser sentence than that pronounced by the court would unduly depreciate the seriousness of the defendant’s crime.” It was error for the trial court to find these aggravating circumstances. State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983).

For this error the judgments imposed against defendant in both the burglary and the attempted rape cases must be vacated and the matter remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).

Insofar as the Court of Appeals found no error in defendant’s trial and no error on the points it discussed with regard to defendant’s sentences, the decision is affirmed. For the reasons stated herein, however, the Court of Appeals’ decision finding no error in the sentencing proceeding is reversed; the sentences imposed upon defendant are vacated; and the case is remanded to the Court of Appeals for further remand by it to Cabarrus County Superior Court for resentencing. The result is that the Court [739]*739of Appeals’ decision is affirmed in part and reversed in part, and the case remanded for resentencing.

Affirmed in part;

Reversed in part; and

Remanded for resentencing.

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Bluebook (online)

314 S.E.2d 546, 310 N.C. 737, 1984 N.C. LEXIS 1689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stinson-nc-1984.

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