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North Carolina v. Wooten9/17/1991
zed in State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983), this Court and the Court of Appeals have repeatedly held that the enumerated methods of proof of N.C. Gen. Stat. § 15A-1340.4(e) are permissive rather than mandatory. [Citations omitted.] . . . Clearly the conviction could have been proven by . . . defendant's admission.
Id. at 593, 308 S.E.2d at 316. Here, the defendant testified on cross-examination as follows:
Q: Ah, Mr. Wooten, that picture was taken when you were arrested for driving while impaired. Is that right?
A: I think so.
Q: Back in the early '80's wasn't it?
A: Yes, sir.
Q: You don't remember going down to the jail on September 11, 1982 and having a picture taken?
A: Well, I know I got a DUI, and I remember I took a picture.
The defendant also claims the conviction does not meet the statutory requirements because the statute provided for punishment of "no less than 30 days nor more than six months" at the time of his conviction. This argument also fails. G.S. § 15A-1340.4(a)(1)o only requires that the "criminal offenses punishable by more than 60 days' confinement."
Finally the defendant contends that the application of maximum sentences for each of the crimes is "grossly unjust." "The 'weight to be given mitigating and aggravating factors is a matter solely within the trial court's discretion.' State v. Penly, 318 N.C. 30, 52, 347 S.E.2d 783, 796 (1986). The defendant has shown no abuse of discretion in the present case, and his assignment of error is overruled." State v. Swann, 322 N.C. 666, 675, 370 S.E.2d 533, 538 (1988).
Remanded for re-sentencing.
Disposition
Remanded for re-sentencing.
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