27 N.C. App. 245 | N.C. Ct. App. | 1975
Defendant contends that the trial court erred in sentencing him to a term of ten years’ imprisonment, a term in excess of that allowed by G.S. 90-95 (d) (1). We agree.
G.S. 90-95 (a) (3), makes it unlawful for any person, except as authorized by the Act, to possess a controlled substance. Any person who violates that section by possession of a Schedule I controlled substance is guilty of a felony and shall be sentenced to a term of imprisonment of not more than five years or fined not more than five thousand dollars or both in the discretion of the court. G.S. 90-95 (d) (1).
Apparently the judge was attempting to sentence defendant under the following;
“If any person commits a felony under this Article after having been previously convicted of an offense under any*246 law of North Carolina or any law of the United States ót any other state, which offense would be punishable as a felony under this Article, he shall be sentenced to a term of imprisonment of up to twice the term otherwise prescribed or fined up to twice the fine otherwise prescribed, or both in the discretion of the court.” G.S. 90-95 (e) (l);'j
This conclusion is reached by reference to a part of the judgment and commitment, as follows:
"... It is Adjudged that the- defendant -be imprisoned for the term of Ten (10) years in the State’s Prison at Raleigh, North Carolina. This sentence to commence at the expiration of any or all sentences pronounced either in State or Federal Court and particularly that certain Federal Court case tried in July, 197U.” (Emphasis added.)
There is no other reference in the record to another conviction.
The indictment did not charge defendant with a conviction for a prior offense and the State did not prove a prior conT viction. Both are required before the higher penalty can be; imposed. ■ i
We call attention to G.S. 15A-928, effective 1 September 1975. Among other things, this statute allows a defendant to admit a previous conviction and thereby preclude consideration by the jury of any evidence thereon, (except as otherwise. per?. mitted), or deny the previous conviction or remain silent and make the State prove the prior conviction as part of the trial in chief. ,
We have examined the record with respect to defendant’s: remaining assignments of error and conclude that defendant’s' trial was otherwise free from prejudicial error.
Judgment is vacated and this case is remanded for entry-of judgment not inconsistent with this opinion. • '
Vacated and remanded.
