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North Carolina v. Richardson11/7/1989
ounsel.
Although it was not raised by the defendant, we take note, pursuant to Rule 2 of the Rules of Appellate Procedure, of the State's contention that a separate sentence for the defendant's conviction of driving while impaired was improper. Under N.C. Gen. Stat. § 20-141.4(a1), driving while impaired is a lesser included offense of felony death by vehicle. Upon conviction of felony death by vehicle the lesser offense merges into the greater. Thus, it is error to sentence a defendant both for felony death by vehicle and the lesser included offense of driving while impaired.
Felony death by vehicle is a Class I felony, punishable by a maximum sentence of imprisonment for five years and a presumptive sentence of imprisonment for two years. N.C. Gen. Stat. §§ 20-141.4(b), 14-1.1(a)(9), 15A-1340.4(f)(7) (1988). In the case below the defendant received a four-year sentence for felony death by vehicle and a consecutive two-year sentence for driving while impaired. The total sentence exceeded the maximum allowed by law for felony death by vehicle. Upon remand the trial court may consider mitigating and aggravating factors applicable to the felony death by vehicle conviction.
The defendant's conviction of driving while license revoked is reversed. The sentence for driving while impaired is vacated, and the trial court's judgment as to felony death by vehicle is remanded for resentencing.
Remanded for judgment.
Disposition
Remanded for judgment.
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