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89 N.C. App. 353

365 S.E.2d 640

State v. Kirkpatrick

Court of Appeals of North Carolina

Decided March 15, 1988

Court of Appeals of North Carolina · decided 1988-03-15

Cited by 8 later decisions — most recently December 2013

8 state decisions

Applies NC 14 § 14-7.6 · NC 15A § 15A-1335

Relies on 67 N.C. App. 655 - State v. Aldridge · 74 N.C. App. 728 - State v. Williams

Good law ✅— No negative treatment on recordhow we know

Decided 1988-03-15

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WELLS, Judge.

¶1 Under his sole assignment of error, defendant contends that the trial court erred in increasing defendant’s sentence on resen-tencing from three years to fifteen years, relying on N.C. Gen. Stat. § 15A-1335 (1983), which is as follows:

Resentencing after appellate review. Where a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence ....

¶2 We disagree.

¶3 While G.S. § 15A-1335 has been interpreted to prohibit the trial court from imposing a more severe sentence because of reweighing factors in aggravation or because of finding new factors in aggravation, see State v. Williams, 74 N.C. App. 728, 329 S.E. *355 2d 709 (1985), where the trial court is required by statute to impose a particular sentence (on resentencing) G.S. § 15A-1335 does not apply to prevent the imposition of a more severe sentence. N.C. Gen. Stat. § 14-7.6 (1986) provides, in pertinent part, as follows:

Sentencing of habitual felons. When an habitual felon . . . shall commit any felony under the laws of the State of North Carolina, he must, upon conviction ... be sentenced as a Class C felon ....

¶4 See also State v. Aldridge, 67 N.C. App. 655, 314 S.E. 2d 139 (1984). Pursuant to the provisions of G.S. § 15A-1340.4(f)(l) (1983), the presumptive sentence for a Class C felon is fifteen years.

¶5 For the reasons stated, we hold that the trial court properly resentenced defendant to a term of fifteen years, and that the judgment of the trial court must be and is

¶6 Affirmed.

Judges Eagles and Greene concur.
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