{
  "id": 8554155,
  "name": "STATE OF NORTH CAROLINA v. JEROME PHILLIPS",
  "name_abbreviation": "State v. Phillips",
  "decision_date": "1978-10-17",
  "docket_number": "No. 783SC497",
  "first_page": "377",
  "last_page": "379",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "year": 1974,
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          "page": "28-29"
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          "page": "2103"
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  "last_updated": "2023-07-14T21:32:33.594298+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges CLARK and Martin (Harry C.) concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JEROME PHILLIPS"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nDefendant was tried and convicted in District Court under two warrants. One charged defendant with non-felonious attempting to break and enter. The other charged defendant with non-felonious secretly peeping into a room occupied by a female person. Defendant was sentenced to consecutive terms of two years and one year imprisonment. He appealed both convictions to Superior Court for trials de novo. Both of the foregoing charges arose out of the same incident.\nPrior to trial de novo in Superior Court the district attorney secured a grand jury indictment charging defendant with the felony of burglary. The charges in the bill of indictment arose from the same conduct for which defendant was convicted of the two misdemeanor charges in District Court from which he appealed to Superior Court for trial de novo.\nIn Superior Court defendant was arraigned, pled not guilty, was tried for burglary and convicted of attempted felonious breaking or entering for which he was sentenced to a term of ten years imprisonment on 5 January 1978.\nOn 20 January 1978 the district attorney entered a voluntary dismissal of the two misdemeanor charges which defendant had appealed to Superior Court for trial de novo. The grounds for the dismissal of each charge was stated as follows: \u201cDefendant convicted of attempted felonious breaking and entering in 77CRS16860 based on same facts as enter into this case.\u201d\nDefendant challenges the felony indictment and his conviction thereunder upon the grounds of denial to him of due process of law. We sustain his challenge on the grounds of denial of due process of law and do not reach his further challenge to the felony indictment on the grounds of double jeopardy.\nThe rationale of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed. 2d 628 (1974) is applicable to the present case. In Blackledge, the defendant was convicted in District Court, Northampton County, North Carolina, of a misdemeanor assault. He appealed to Superior Court for trial de novo. Prior to the trial de novo the district attorney secured a grand jury indictment charging defendant with a felonious \u2022 assault for the same conduct for which he was tried and convicted in District Court of a misdemeanor assault. Fearing the possibility of vindictiveness by the prosecutor, the Court noted in Blackledge that \u201c[a] prosecutor clearly has a considerable stake in discouraging convicted misde-meanants from appealing and thus obtaining a trial de novo in the superior court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant\u2019s conviction becomes final, and may even result in a formerly convicted defendant\u2019s going free. And, if the prosecutor has the means readily at hand to discourage such appeals \u2014 by \u2018upping the ante\u2019 through a felony indictment whenever a convicted misde-meanant pursues his statutory appellate remedy \u2014 the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.\u201d Blackledge, supra, at 27-28, 94 S.Ct. at 2102, 40 L.Ed. at 634.\nThere is absolutely no evidence in this case that the district attorney acted in bad faith or maliciously in seeking the felony indictment against defendant. However, the rationale of Blackledge, similar to the rationale of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969), is that actual retaliatory motivation by the district attorney need not be shown or even exist. The concern is that the fear of such vindictiveness by the district attorney may unconstitutionally deter a defendant\u2019s exercise of the right to appeal from the District Court to the Superior Court for trial de novo. \u201cDue process of law requires that such a potential for vindictiveness must not enter into North Carolina\u2019s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to [defendant\u2019s] invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.\" Blackledge, supra, at 28-29, 94 S.Ct. at 2103, 40 L.Ed. at 635.\nFor the reasons stated, defendant\u2019s conviction of the felony charge in Superior Court was in effect a nullity.\nJudgment vacated and action dismissed.\nJudges CLARK and Martin (Harry C.) concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Tiare Smiley Farris, for the State.",
      "John M. Savage for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JEROME PHILLIPS\nNo. 783SC497\n(Filed 17 October 1978)\nConstitutional Law \u00a7 28; Criminal Law \u00a7\u00a7 18.4, 26.9\u2014 conviction of misdemeanors in district court \u2014appeal for trial de novo \u2014 indictment and conviction of felony in superior court \u2014 denial of due process\nA defendant who appealed to the superior court from his conviction in the district court of nonfeloniously attempting to break and enter and nonfeloniously peeping secretly into a room occupied by a female person was denied due process by his indictment for burglary and conviction of attempted felonious breaking and entering in the superior court based on the same conduct for which he was convicted in the district court.\nAPPEAL by defendant from Bruce, Judge. Judgment entered 5 January 1978 in Superior Court, PlTT County. Heard in the Court of Appeals 26 September 1978.\nAttorney General Edmisten, by Associate Attorney Tiare Smiley Farris, for the State.\nJohn M. Savage for the defendant."
  },
  "file_name": "0377-01",
  "first_page_order": 405,
  "last_page_order": 407
}