State v. Allen
| Decision Date | 14 April 1977 |
| Docket Number | No. 70,70 |
| Citation | 292 N.C. 431,233 S.E.2d 585 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Fred Brent ALLEN. |
Rufus L. Edmisten, Atty. Gen., by Jack Cozort, Associate Atty., Raleigh, for the State.
Douglas R. Hux, Winston-Salem, for defendant-appellant.
In an independent proceeding purportedly pursuant to the North Carolina Habitual Felons Act, G.S. 14-7.1 through 14-7.6, defendant was indicted, tried and convicted of being an habitual felon. He was sentenced to twenty years imprisonment. The indictment alleged and the state's evidence tended to prove that before the present indictment was returned defendant had entered successive pleas of guilty at different times to more than three felony offenses each committed after conviction of the one preceding it. The state's evidence tended to show further that defendant had been sentenced on each of these prior convictions. Defendant moved to dismiss the indictment, to dismiss the charge at the close of all the evidence, and appealed from the judgment of the court imposing a 20-year sentence, assigning as error the entry of the judgment and failure of the trial court to allow these motions.
By his motion to dismiss the indictment defendant raised the question of whether our Habitual Felons Act authorized the state to bring this independent proceeding to declare him an habitual felon when the indictment itself revealed that before it was returned all the proceedings by which he had been found guilty of the underlying substantive felonies had been concluded. We hold that the act does not authorize such a proceeding and that defendant's motion to dismiss the indictment should have been allowed.
The Habitual Felons Act provides in pertinent part as follows:
Properly construed this act clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon. It is likewise clear that the proceeding by which the state seeks to establish that defendant is an habitual felon is necessarily ancillary to a pending prosecution for the "principal," or substantive, felony. The act does not authorize a proceeding independent from the prosecution of some substantive felony for the sole purpose of establishing a defendant's status as an habitual felon. For a similar statutory procedure see General Statute 15A-928 and note especially the official commentary thereto.
One writer has identified three basic multiple offender or recidivist type procedures by which criminal sentences otherwise appropriate may be increased. "Recidivist Procedures," 40 N.Y.U.L.Rev. 332 (1965). The first type requires the allegation of recidivism in the indictment charging the substantive offense. The same jury which tries the substantive offense simultaneously tries the recidivism issue. This kind of proceeding was sustained from constitutional attack in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). A second kind of procedure is a supplemental proceeding whereby a multiple offender charge is filed after the necessary underlying felony prosecutions have been completed. If in the supplemental proceeding the defendant is found to be a multiple offender, the sentence earlier imposed for the last substantive felony is, by statute, vacated and a new enhanced sentence is imposed for that felony. The third kind of proceeding is that contemplated in the North Carolina Habitual Felons Act. This type proceeding requires the indictment or information charging the defendant to be separated into two parts, the first alleging the present, or substantive crime, and the second alleging defendant's recidivist...
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State v. Williams
...becomes an element of the latter . . ." The same requirements prevail under our Habitual Felon Act, G.S. 14-7.1, Et seq. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977). Most courts have, however, sustained against constitutional attack statutory procedures for sentence enhancement even......
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State v. Schneckloth
...becomes an element of the latter....' The same requirements prevail under our Habitual Felon Act, G.S. 14-7.1, et seq. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977). "Most courts have, however, sustained against constitutional attack statutory procedures for sentence enhancement even ......
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State v. Taylor
...be appropriate for the substantive felony which the defendant has allegedly committed while in such a status." State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977). The date of commission of a prior felony offense is not essential to a charge of having attained habitual felon statu......
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State v. Allison
...an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence." State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977). Here, the trial court erroneously entered judgment against defendant as an habitual felon. However, we believe thi......