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State v. Hiatt12/6/2005
Under the statutory sentencing guidelines for impaired driving, the trial court "must hold a sentencing hearing to determine whether there are any aggravating or mitigating factors that affect the sentence to be imposed." N.C. Gen. Stat. § 20-179(a) (2003). The appropriate level at which a defendant is sentenced is based on the finding and weighing of these aggravating and mitigating factors. N.C. Gen. Stat. § 20-179(f) (2003). If the judge determines that " here are no aggravating and mitigating factors, or that the aggravating factors are substantially counterbalanced by mitigating factors . . . the defendant is subject to Level Four punishment." Id. However, if "the mitigating factors substantially outweigh any aggravating factors . . . the defendant is subject to Level Five punishment." Id.
In the instant case, the trial court found an aggravating and a mitigating factor and sentenced defendant to a level four punishment. Under the principles set forth in Allen and Speight, defendant received a level four term of imprisonment, which exceeded the term he would have necessarily received as a level five offender had the trial court not erred in finding an aggravating factor that was not submitted to the jury. See N.C. Gen. Stat. § 20-179(f)(3) (2003). Accordingly, we remand for resentencing.
Remanded for resentencing.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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