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State v. Triplett11/15/2005
tribunal having jurisdiction to determine it." State v. Mitchell, 276 N.C. 404, 410, 172 S.E.2d 527, 531 (1970) (quoting Yakus v. United States, 321 U.S. 414, 444, 88 L.Ed. 834, 859 (1944)). However, this Court acknowledges that given the rather short time frame between the issuance of Blakely and the defendant's trial in the instant case, a manifest injustice would occur were we not to hear defendant's appeal. See N.C. R. App. P. 2 (2005). Thus, we invoke Rule 2 and hear defendant's appeal. We note that defendant expressly raised a Blakely claim on appeal despite his aforementioned failure to object at sentencing. Because defendant was sentenced to a Level Three punishment based on aggravating factors not submitted to a jury and not admitted to by the defendant, we remand for resentencing.
No error at trial. Remanded for resentencing.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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