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[T] State v. Wood6/1/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
James Carey Wood (defendant) appeals a judgment dated 13 December 2002 entered consistent with a jury verdict finding him guilty of habitual impaired driving.
The evidence at trial indicates that at about 1:00 a.m. on 26 August 2000, defendant drove his vehicle to a checkpoint on Healey Drive in Forsyth County, North Carolina. At the checkpoint, police officers stopped all oncoming vehicles and asked drivers to produce drivers' licenses and registrations. When defendant stopped his vehicle at the checkpoint and Officer S.D. Mitchell asked for his driver's license and registration, defendant stated his license was suspended. Upon smelling a strong odor of alcohol from defendantand observing defendant's speech to be slurred, slow, and mumbled, Officer Mitchell requested defendant to pull over. Three sobriety tests were administered to defendant, all of which he failed. Defendant was arrested and charged with driving while impaired, driving while license revoked, and felonious habitual driving while impaired.
In an order filed 12 February 2002 denying defendant's motion to dismiss the charge of habitual driving while impaired, the trial court found:
2. . . . n September 12, 2000 . . . defendant appeared in Forsyth County Criminal District Court . . . to answer the misdemeanor charges pending against him;
3. . . . efendant . . . tendered a plea of guilty to misdemeanor Driving while Impaired. The State dismissed the misdemeanor Driving while License Revoked charge;
4. . . . fter . . . defendant tendered his plea to the court[, the State] realized that . . . the felony Habitual Driving while Impaired charge was still pending. Based upon this realization [the State] requested the matter be continued until the afternoon Session;
5. . . . he Honorable Chester C. Davis, District Court Judge presiding at the hearing, allowed the continuance and directed that the parties return to court at 2:15 p.m. for further proceedings;
6. . . . hen the parties returned to court that afternoon [the State] informed the court that . . . defendant had a felony charge pending based upon the same offense and that the State was consequently taking a voluntary dismissal of the misdemeanor charge;
7. . . . counsel for . . . defendant objected to the dismissal on the grounds that . . . defendant had tendered his plea ofguilty and that the court had accepted . . . defendant's plea;
8. . . . efendant's objection was overruled, but that Judge Davis instructed the Clerk to note on the judgment that the State dismissed the offense "after entry of plea";
9. . . . rior to the State taking a voluntary dismissal of the misdemeanor Driving while Impaired offense no witness had been sworn, no testimony had been elicited, the State had not presented a factual basis for the plea and neither party had presented evidence to the court;
10 . . . pon hearing that . . . efendant tendered a plea of guilty to the misdemeanor Driving while Impaired offense, the clerk erroneously noted a verdict of guilty on the Judgment and erroneously recorded a verdict of guilty in the courtroom minutes;
11. . . . he courtroom clerk erroneously made these entries in anticipation of proceedings consistent with a guilty plea;
12. . . . he clerk also noted that the case was voluntarily dismissed on the Judgment and noted
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