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146 N.C. App. 381

552 S.E.2d 697

State v. Vardiman

Court of Appeals of North Carolina

Decided October 2, 2001

Court of Appeals of North Carolina · decided 2001-10-02

Cited by 31 later decisions (2 by the Supreme Court) — most recently March 2016 · most notably 185 N.C. App. 227 - State v. Wood (2007), 155 N.C. App. 35 - State v. Carpenter (2002)

29 state decisions

Key passage — most relied on by later courts

“Defendant cites a litany of cases that seem to stand for the proposition that “when a criminal offense in its entirety is an essential element of another offense a defendant may not be punished for both offenses.” The United States Supreme Court, however, distinguishes prior convictions as elements of a crime from other elements of a crime, holding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Apprendi is in line with our conclusion in the case sub judice, that whether a statute sur vives a double jeopardy constitutional analysis does not depend on whether the statute is called substantive or status, or whether the statute is comprised of elements or sentencing factors, but what the statute accomplishes in reality. The point that “[l]abels do not afford an acceptable answer . . . applies as well... to the constitutionally novel and elusive distinction between ‘elements’ and ‘sentencing factors.’ ” “Despite what appears to us the clear ‘elemental’ nature of the factor here, the relevant inquiry is one not of form, but of effectf.]” The effect of section 20-138.5 is that a defendant is punished more severely for a recent crime based on having committed previous crimes. Consequently, section 20-138.5 does not violate the United States and North Carolina Constitutions.”

quoted by 1 later decision, including 155 N.C. App. 35 - State v. Carpenter

Relies on Lehman Bros. v. Lilly · State v. Cherry · State v. Williams

Good law ✅— No negative treatment on recordhow we know

Decided 2001-10-02

View the full empirical analysis of this case →

GREENE, Judge,

¶1dissenting.

¶2Because I believe prosecution for habitual impaired driving violates the prohibition against double jeopardy, I respectfully dissent.

¶3If “a criminal offense in its entirety is an essential element of another offense[,] a defendant may not be punished for both offenses,” as punishment for both offenses violates the prohibition against double jeopardy. State v. Williams, 295 N.C. 655, 659, 249 *388S.E.2d 709, 713 (1978). Because habitual impaired driving is a substantive offense, not a status, State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 612, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994), and because convictions for three or more offenses involving impaired driving are necessary elements of the habitual impaired driving offense, N.C.G.S. § 20-138.5(a) (1999), the defense of double jeopardy bars the prosecution for habitual impaired driving, see State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986) (double jeopardy barred prosecution of defendant for both first-degree kidnapping and underlying sexual offense); State v. Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567 (1979) (defendant convicted of first-degree murder under the felony-murder rule cannot also be convicted of the underlying felony), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980).

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