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State v. Vardiman10/2/2001
Appeal by defendant from judgment entered 15 February 2000 by Judge Dennis J. Winner in Superior Court, Buncombe County. Heard in the Court of Appeals 15 May 2001.
Stanley Marion Vardiman (defendant) was convicted of driving while impaired on 19 January 1990, 12 July 1991, and 22 July 1994. For each of these convictions he was sentenced with fines, imprisonment, and/or supervised probation. On 6 March 1995, following a fourth offense of driving while impaired, defendant was indicted for habitual impaired driving, having three prior driving while impaired convictions within the previous seven years. He pled guilty on 20 April 1995 and was sentenced to thirty months in the North Carolina Department of Correction.
On 7 December 1998, defendant was again indicted for habitual impaired driving based on his arrest on 25 July 1996 for driving while impaired after receiving three prior driving while impaired convictions in the previous seven years. After pleading guilty, defendant was sentenced to an imprisonment of twelve to fifteen months in the North Carolina Department of Correction.
On 10 January 2000, Judge Dennis J. Winner issued an order granting defendant a hearing on his motion for appropriate relief challenging the constitutionality of the habitual impaired driving statute. The hearing began on 1 February 2000, but recessed on 14 February 2000, when Judge Winner denied the motion and signed an order captioned "Certification of Appealability." The order asked this Court to issue a writ of certiorari in order to consider whether the habitual impaired driving statute is unconstitutional on its face, and whether the habitual impaired driving statute was unconstitutionally applied to defendant by the trial court. A writ of certiorari was granted by this Court.
The two issues presented in this appeal are:
(I) whether North Carolina General Statutes section 20-138.5 (1999), the habitual impaired driving statute, violates the principles of double jeopardy under the United States and North Carolina Constitutions;
(II) if North Carolina General Statutes section 20-138.5 is constitutional, whether it was unconstitutionally applied in this case. We hold the statute to be constitutional on its face and as applied.
Defendant argues that the habitual impaired driving statute is unconstitutional because it violates principles of double jeopardy. The habitual impaired driving statute provides that "a person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense." N.C. Gen. Stat. § 20-138.5(a)(1999).
It is well settled that "the Double Jeopardy Clause of the North Carolina and United States Constitutions protect against . . . multiple punishments for the same offense." State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986); See also Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 193 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 665 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865 (1989); Green v. United States, 355 U.S. 184, 188, 2 L. Ed. 2d 199, 204 (1957).
It is also well settled that recidivist statutes, or repeat-offender statutes, survive constitutional challenges in regard to double jeopardy challenges because they increase the severity of the punishment for the crime being prosecuted; they do not punish a previous crime a second time. See e.g, Monge v. California, 524 U.S. 721, 728, 141 L. Ed. 2d 615, 624 (1998)(" n enhanced senten
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