¶1concurring in the result.
¶2I fully agree with Judge Walker that separate acts of embezzlement by a defendant from the same victim occurring over a period of time do not constitute, as a matter of law, a single offense ending on the date of the last embezzlement. Indeed, each act of embezzlement can support a separate indictment. See State v. Rupe, 109 N.C. App. 601, 603-04, 428 S.E.2d 480, 482-83 (1993); State v. Thompson, 50 N.C. App. 484, 489, 274 S.E.2d 381, 385 (“[T]he State could have obtained a separate indictment for each check drawn by defendant in excess of the authorized amount [rather than issuing] one indictment for each year.”), disc. review denied, 302 N.C. 633, 280 S.E.2d 448 (1981). There is nothing, however, to preclude a single embezzlement indictment charging the embezzlement of monies, with the date of the offense extending over a period of time and including multiple misapplications and conversions. The choice of how to proceed is with the district attorney.
¶3In this case, the district attorney chose to proceed with a single indictment charging the defendant with the embezzlement of $478,579.42 over a period of time extending from 8 January 1993 to 21 February 1996. Because the offense as charged in the indictment was not completed until after 1 October 1994, the trial court was required to sentence the defendant under the Structured Sentencing Act (Act). N.C.G.S. § 15A-1340.10 (1997) (the Act applies to all criminal offenses “that occur on or after October 1, 1994”); cf., e.g., United States v. Moscony, 927 F.2d 742, 754-56 (3d Cir.) (holding that the new Federal Sentencing Guidelines apply where the indictment charges an offense beginning before but concluding after the effective date of the guidelines), cert. denied, 501 U.S. 1211, 115 L. Ed. 2d 984 (1991); United States v. Sheffer, 896 F.2d 842, 844-45 (4th Cir.) (same), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 416 (1990); United States v. White, 869 F.2d 822, 826 (5th Cir.) (same), cert. denied, 490 U.S. 1112, 104 L. Ed. 2d 1033 (1989). To allow sentencing in this case under Fair Sentencing (the law in effect for crimes committed prior to 1 October 1994) is not permitted by our case law, which requires that sentenc*513ing be consistent with the indictment. See State v. Neville, 108 N.C. App. 330, 332, 423 S.E.2d 496, 497 (1992) (defendant’s punishment relies on his indictment).
¶4Accordingly, I vacate the sentence and remand for imposition of a new sentence consistent with the Act. Because I agree with Judge Walker that the trial court erred in finding defendant’s violation of a position of trust to be an aggravating factor, the trial court may not consider this factor in resentencing.