295 S.E.2d 619 | N.C. Ct. App. | 1982
STATE of North Carolina
v.
Donald Abernathy FREEMAN.
Court of Appeals of North Carolina.
*620 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Steven F. Bryant, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender Malcolm R. Hunter, Jr., Raleigh, for defendant-appellant.
WEBB, Judge.
The defendant first assigns error to the overruling of his motion to dismiss for the State's failure to comply with the Speedy Trial Act. We believe this assignment of error has merit. G.S. 15A-701(a1) provides in part:
"Notwithstanding the provisions of subsection (a) the trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1,1978, and before October 1, 1983, shall begin within the time limits specified below:
* * * * * *
(3) When a charge is dismissed, other than under G.S. 15A-703 or a finding of no probable cause pursuant to G.S. 15A-612, and the defendant is afterwards charged with the same offense or an offense based on the same act or transaction or on the same series of acts or transactions connected together or constituting parts of a single scheme or plan, then within 120 days from the date that the defendant was arrested, served with criminal process, waived an indictment, or was indicted, whichever occurs last, for the original charge."
The defendant was indicted in Lincoln County on 20 October 1980. The State took a voluntary dismissal on 23 December 1980 because the defendant was "to be tried in Mecklenburg County on related charges." After the Lincoln County indictment was dismissed and on 23 March 1981, the defendant was indicted in Mecklenburg County on the charge for which he was convicted. We believe the false pretense for which the defendant was charged in Lincoln County and the aiding and abetting false pretense for which the defendant was convicted in Mecklenburg County were part of the same scheme or plan. See State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981). The Lincoln County charges were not dismissed *621 under G.S. 15A-703 or on a finding of no probable cause. The trial in Mecklenburg County was not held within 120 days of the indictment in Lincoln County which delay violated the provisions of G.S. 15A-701(a1). See State v. Norwood, 57 N.C.App. 584, 291 S.E.2d 835 (1982); State v. Walden, 53 N.C.App. 196, 280 S.E.2d 505 (1981); and State v. Dunbar, 47 N.C.App. 623, 267 S.E.2d 577 (1980). We reverse and remand for a hearing in superior court as to whether the case should be dismissed with or without prejudice.
We shall discuss the defendant's other assignment of error as the question it raises may recur if the defendant is again brought to trial. The defendant contends it was error to deny his motion to dismiss the charge of false pretense under G.S. 14-100. He argues that under the evidence he could have been convicted of violating G.S. 14-106 (obtaining property in return for worthless check, draft or order) or G.S. 14-107 (worthless check). The defendant argues that a person may not be prosecuted under the false pretense statute when other statutes more specifically fit the alleged activities. We disagree. A single act or transaction may violate different statutes. See State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975) and State v. Byrd, 50 N.C.App. 736, 275 S.E.2d 522 (1981). We believe the evidence in this case is sufficient for the jury to convict the defendant of violating G.S. 14-100. See State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980) for the elements necessary to convict under G.S. 14-100. The defendant relies on State v. Bost, 55 N.C.App. 612, 286 S.E.2d 632 (1982); State v. Douglas, 54 N.C.App. 85, 282 S.E.2d 832 (1981); and State v. Douglas, 51 N.C.App. 594, 277 S.E.2d 467 (1981), aff'd, 304 N.C. 713, 285 S.E.2d 802 (1982). Each of these cases involved the question of which section of a statute covered the offense charged. In this case we hold the offense is covered by more than one section.
Reversed and remanded.
MORRIS, C. J., and WHICHARD, J., concur.
