State v. Brice, 247 N.C. App. 766

Defendant Sandra Meshell Brice was indicted by a Catawba County grand jury for "habitual misdemeanor larceny" for allegedly stealing five packs of steaks valued at $70.00.
The single-count indictment recited the substantive larceny charge and then listed four prior misdemeanor larceny convictions as part of that same count rather than in a separate special indictment or separate count.
At trial defendant stipulated to the four prior larceny convictions outside the jury's presence; the court proceeded treating the case as larceny and the jury convicted.
The trial court entered judgment for habitual misdemeanor larceny and imposed a suspended prison sentence with probation and a short active term.
On appeal (certiorari allowed), defendant argued the indictment was fatally defective for failing to comply with N.C. Gen. Stat. § 15A-928, depriving the trial court of jurisdiction to convict and sentence her for the habitual-offender (felony) version of larceny.
The Court of Appeals agreed the indictment did not comply with § 15A-928(b)/(d) (no special indictment/separate count), vacated the habitual misdemeanor larceny conviction, and remanded for entry of judgment and sentence on misdemeanor larceny.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the indictment’s failure to allege prior convictions in a separate special indictment/count under § 15A-928 deprived the trial court of jurisdiction to enter judgment for habitual misdemeanor larceny	State: Any § 15A-928 error was harmless where defendant stipulated to priors and was not prejudiced (relying on Jernigan)	Brice: Indictment violated § 15A-928’s procedure; such a defect is jurisdictional and may be raised at any time	Court: The indictment violated § 15A-928(b)/(d); under State v. Williams such a defect deprived the trial court of jurisdiction. Judgment for habitual misdemeanor larceny vacated; remand for misdemeanor larceny judgment

State v. Williams, 153 N.C. App. 192 (2002) (failure to allege priors in a special indictment or separate count under § 15A-928 deprives trial court of jurisdiction to impose habitual-misdemeanor sentence)
State v. Jernigan, 118 N.C. App. 240 (1995) (failure to follow § 15A-928(c) arraignment procedure was held harmless where defendant stipulated to priors and was not prejudiced)
State v. Wallace, 351 N.C. 481 (2000) (indictment invalid on its face may be challenged at any time because it deprives trial court of jurisdiction)
State v. Petersilie, 334 N.C. 169 (1993) (when record shows lack of jurisdiction, appellate court must arrest or vacate judgment)