 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] State v. Tucker10/7/2003
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Defendant Rickey Allen Tucker appeals from his conviction of habitual impaired driving. As the State concedes, by notifying the potential jurors during jury selection that defendant was charged "with the offense of habitual driving while impaired," the trial court failed to comply with N.C. Gen. Stat. § 15A-928 (2001). We reverse and remand for a new trial.
Defendant was arrested on 12 March 1999 and charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2001). Subsequently, defendant was indicted for and found guilty of habitual impaired driving. The trial court sentenced defendantto 34 months to 41 months imprisonment. Defendant failed to timely perfect his appeal and, on 6 August 2002, defendant filed a petition for writ of certiorari seeking a belated appeal. This Court allowed the petition for writ of certiorari to review the judgment entered against him on 7 August 2001 by Judge James Downs.
During jury selection at defendant's trial, the trial court informed prospective jurors: "Mr. Tucker is charged . . . with the offense of habitual driving while impaired." The case proceeded to trial with the State calling the arresting officer as its only witness. After his testimony, the prosecutor stated out of the presence of the jury, " rom what I understand the defendant has no objection to the State introducing his prior record, certified by the clerk's office. That would be three prior which serve for the basis for the charge. But other than that the State would have no other evidence." The court then recessed for the day.
On the next morning, with the jury out of the courtroom, the State moved to introduce exhibits regarding defendant's prior convictions. Defense counsel stated, "Your Honor, there's no objection to that. We stipulated to that earlier." Defense counsel then made a motion to dismiss in the course of which he stipulated that defendant had three previous convictions within the prior seven years.
When the jury returned, the State moved to introduce a certified computer printout showing defendant's conviction for driving while impaired in 1992 and two 15 October 1996 judgments showing convictions for impaired driving. Defense counsel did notobject. The trial court admitted the exhibits and they were published to the jury. The trial court then submitted to the jury the possible verdicts of guilty of habitual impaired driving or not guilty; the jury found defendant guilty.
N.C. Gen. Stat. § 15A-928 (2001) specifies the procedure to be used in cases where "the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter":
(a) . . . If a reference to a previous conviction is contained in the statutory name or title of the offense, the name or title may not be used in the indictment or information, but an improvised name or title must be used which labels and distinguishes the offense without reference to a previous conviction.
(b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principal indictment as a separate count. . . . the State may not refer to the sp
Page 1 2 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|