North Carolina Guilford County Habitual Felony Indictment Double Jeopardy Lawyers Attorney

by

Atchuthan Sriskandarajah

STATE OF NORTH CAROLINA v. RICHARD BERNARD HAITH, Defendant.

COURT OF APPEALS OF NORTH CAROLINA

June 11, 2003, Heard in the Court of Appeals

July 1, 2003, Filed

Facts:

The defendant appeals from sentences entered upon

judgments

for habitual impaired driving and being an habitual felon. The evidence presented at trial tended to show that the defendant was stopped by Deputy Sheriff who testified that defendant had signs of intoxication, later the defendant was transported to the Guilford County jail and administered an Intoxilyzer test, which reported a breath alcohol concentration of 0.19. subsequently defendant was indicted for driving while license revoked, driving while impaired and habitual impaired driving, and being an habitual felon. The charge of driving while license revoked was dismissed. A jury found defendant guilty of driving while impaired, habitual impaired driving, and being an habitual felon. Defendant was sentenced to a minimum term of 121 months and a maximum term of 155 months for habitual impaired driving and being an habitual felon and 12 months for driving while impaired. Defendant challenges the sentences imposed upon his convictions by seven assignments of error. He has abandoned his second and seventh assignments of error.

Issues:

Whether the trial court erred in failing to strike the habitual impaired driving indictment?

Whether the trial court erred in not declaring a mistrial when the jury reported they could not reach a verdict?

Whether the defendant could be sentenced for driving while impaired as well as habitual driving while impaired?

Discussion:

This court held that there were two separate indictments here which adequately informed defendant of the State’s prosecution and The plain error doctrine is used in exceptional cases when a question “was not preserved by objection as noted at trial.” Plain error review is not available to defendant upon this issue. In the present case, the first count states the elements of impaired driving under G.S. 20-138.1 and the second count lists three separate convictions, as delineated by 15A-928(b). The trial court was not required to strike the habitual driving while impaired indictment, and defendant’s assignment of error is overruled.

This court held that here, the judge “properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. After a careful examination of the record, we determine that the trial court did not abuse its discretion in denying the motion for mistrial; there were no improper statements concerning the effect of the jury remaining deadlocked, nor were the deliberations unreasonably lengthy.

This court held that habitual driving while impaired is a substantive offense. Driving while impaired is an element of habitual driving while impaired, G.S. 20-138.5, and is a lesser included offense of that charge. Thus, it was not error for the trial court to deny the motion to dismiss and charge the jury as to both offenses. However, as conceded by the State, defendant cannot be sentenced for both habitual driving while impaired and the lesser included offense, punishing twice for the same conduct. Double jeopardy bars additional punishment where the offenses have the same elements or when one offense is a lesser included offense of the other. Upon sentencing defendant for habitual driving while impaired, the trial court should have arrested defendant’s conviction of driving while impaired.

No error, remanded for arrest of judgment upon the conviction of driving while impaired.

Conclusion:

This court hence remands the case to the trial court to arrest judgment entered upon defendant’s conviction of driving while impaired.

Disclaimer:These summaries are provided by the SRIS Law Group. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in Virginia, Maryland, Massachusetts, New York, North Carolina & California. The firm handles criminal/traffic defense, family law, immigration & bankruptcy cases.

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