81 N.C. App. 515 | N.C. Ct. App. | 1986
Defendant first assigns error to the trial court’s denial of his motion to dismiss for failure of the State to comply with the provisions of the Interstate Agreement on Detainers, G.S. 15A-761. Defendant was incarcerated in Missouri when he was notified that a detainer had been filed against him by Guilford County for thirteen charges of robbery with a dangerous weapon. Defendant contends that he was not brought to trial for case No. 85CRS28545 within 180 days after written notice of his place of imprisonment and his request for final disposition of the charges against him were delivered to the Guilford County District Attorney and Clerk of Court, as required by the Interstate Agreement on Detainers. We disagree.
The record discloses that on 1 July 1985, counsel for defense and the State stipulated in a written agreement that the Interstate Agreement on Detainers applied to defendant’s indictments for armed robbery, including indictment No. 85CRS20292, and “that these matters must be brought to trial pursuant to that Act on or before August 6, 1985, unless the matter is continued in open court, in the presence of the counsel for the defendant, Charles T. Dorsett for good cause shown.” The record further discloses that indictment No. 85CRS20292 was filed attempting to
Defendant next contends that the trial court erred in denying his motions to suppress the identification testimony of, Betty New and Omega Dean. Prior to trial, defendant filed a motion to suppress the photographic identification and in-court identification of defendant by these witnesses for the State. At trial, following voir dire examinations of Omega Dean and Betty New, the trial court made detailed findings and conclusions regarding their identification of defendant as the perpetrator of the robbery. The court found and concluded that the photographic line-up viewed by these witnesses was not impermissibly suggestive and that their in-court identification of defendant was based on their observations of defendant at the time of the crime and were not influenced or tainted in any way by out-of-court identification procedures. We have reviewed the evidence adduced on voir dire and hold that the findings and conclusions made by the trial court are supported by competent evidence in the record.
Defendant’s final contention is that the trial court erred in sentencing by finding as the sole aggravating factor that defendant had been convicted of robbery with a dangerous weapon in Guilford County case No. 85CRS28542 because that case was on appeal to this Court at the time of the sentencing hearing. We agree.
G.S. 15A-1340.2 defines “prior conviction” for the purposes of the Fair Sentencing Act as follows:
A person has received a prior conviction when he has been adjudged guilty of or has entered a plea of guilty or no contest to a criminal charge, and judgment has been entered*518 thereon, and the time for appeal has expired, or the conviction has been finally upheld on direct appeal.
G.S. 15A-1340.2(4). Defendant’s appeal in Guilford County case No. 85CRS28542 had not been finally upheld on direct appeal at the time of the sentencing hearing, but was on appeal to this Court. Therefore, the trial court erred in finding as an aggravating factor that defendant had a prior conviction.
For the foregoing reasons, we hold that defendant had a fair trial free of prejudicial error, but remand for a new sentencing hearing.
No error in trial; remanded for resentencing.