 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. McDonald7/6/2004
almost twenty years and is a habitual felon." __ N.C. App. at __, 577 S.E.2d at 421. Here, defendant was not sentenced to 120 to 153 months in prison solely because of his one assault on Rowland. Defendant was sentenced based on his history of repeated assaults, misdemeanor convictions, and his prior felony convictions, all of which occurred within a fifteen year time span. Defendant's assignment of error is overruled.
V. Possession of Cocaine to Support Habitual Felon Status
Defendant contends that the trial court erred in using his conviction of possession of cocaine as one of the underlying felonies to establish his status as an habitual felon and argues that punishing a misdemeanor as a felony does not make that crime a felony for purposes of the Habitual Felon Act. Pursuant to our Supreme Court's rulings in State v. Jones, __ N.C. __, __ S.E.2d __ (June 25, 2004) (No. 591PA03) and State v. Sneed, __ N.C. __, __ S.E.2d __ (June 25, 2004) (No. 601PA03), defendant's assignment of error is without merit.
In Jones, our Supreme Court, reversing the Court of Appeals decision, concluded:
Under N.C.G.S. § 90-95(d)(2), the phrase "punishable as a Class I felony" does not simply denote a sentencing classification, but rather, dictates that a conviction for possession of the substances listed therein, including cocaine, is elevated to a felony classification for all purposes. Concerning the controlled substances listed therein, the specific exceptions contained in section 90-95(d)(2) control over the general rule that possession of any Schedule II, III, or IV controlled substance is a misdemeanor.
__ N.C. at __, __ S.E.2d at __ ; see also Sneed, __ N.C. at __, __ S.E.2d at __. The Court also held, "because N.C.G.S. § 90-95(d)(2) classifies possession of cocaine as a felony, defendant's 1991 conviction for possession of cocaine was sufficient to serve as an underlying felony for his habitual felon indictment, and thus, defendant's habitual felon indictment was valid." Jones, __ N.C. at __, __ S.E.2d at __. Defendant's assignment of error is overruled.
VI. Conclusion
Defendant failed to show the trial court erred in using the HMA offense to enhance defendant's punishment pursuant to the Habitual Felon Act or that his sentence constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments. Based on our Supreme Court's recent rulings in State v. Jones and State v. Sneed, the trial court properly sentenced defendant as an habitual felon.
No Error.
Judges WYNN and MCGEE concur.
|