State v. Sullivan
| Decision Date | 06 July 1993 |
| Docket Number | No. 9212SC820,9212SC820 |
| Parties | STATE of North Carolina v. Glenden Ray SULLIVAN. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Sueanna P. Sumpter, Asheville, for State.
Parish, Cooke, & Russ by James R. Parish, Fayetteville, for defendant-appellant.
Defendant-appellant, Glenden Ray Sullivan, was tried on an indictment charging defendant with (1) "feloniously" attempting to break into a coin-operated machine in violation of North Carolina General Statutes § 14-56.1 (1986), (2) unlawfully and willfully damaging real property in violation of North Carolina General Statutes § 14-127 (1986), (3) possessing drug paraphernalia in violation of North Carolina General Statutes § 90-113.22 (1990), and (4) trespassing in violation of North Carolina General Statutes § 14-159.13 (1986). Defendant was also indicted as an habitual felon. The first count of the indictment charging defendant with feloniously attempting to break into a coin-operated machine served as the ancillary proceeding to which the habitual felon proceeding could attach.
At the close of the State's case, the court dismissed the charge of trespass. The jury returned guilty verdicts as to the remaining charges. A subsequent proceeding was immediately held to determine defendant's status as an habitual felon. From a special verdict by the jury that defendant was an habitual felon, the court imposed a sentence of 30 years in the North Carolina Department of Corrections. Defendant appeals.
On appeal, defendant brings forth thirteen assignments of error. We find the first assignment of error dispositive. Defendant contends that there was no underlying felony for which defendant was convicted to serve as an ancillary prosecution to which the habitual felon proceeding could attach. He further argues that his convictions and sentence must be vacated because the charges on which he was charged, tried and convicted were all misdemeanors tried in a superior court which had no subject matter jurisdiction.
The State, however, contends that the charge of attempting to break into a coin-operated machine is a felony because it is an offense which is infamous, done in secrecy and malice, or with deceit and intent to defraud. See North Carolina General Statutes § 14-3(b) which states that "[i]f a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall ... be guilty of a Class H felony."
It is well settled that in order to support an habitual felon conviction and sentence, there must be an ancillary felony prosecution to which the habitual felon proceeding could attach. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977). It is also well settled law that exclusive original jurisdiction of all misdemeanors is in ...
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