{
  "id": 8359675,
  "name": "STATE OF NORTH CAROLINA v. JOHNNY THOMAS, JR., aka JOHNNY THOMAS TAYLOR aka THOMAS TAYLOR aka JOHNNY COX aka JOHNNY THOMPSON aka SAMUEL COBB aka WILLIAM DAVIS aka NATHANIEL CLARK aka THOMAS COX aka JOHN THOMAS DARDEN aka THOMAS DARDEN",
  "name_abbreviation": "State v. Thomas",
  "decision_date": "1986-09-02",
  "docket_number": "No. 868SC337",
  "first_page": "682",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Wells and Martin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHNNY THOMAS, JR., aka JOHNNY THOMAS TAYLOR aka THOMAS TAYLOR aka JOHNNY COX aka JOHNNY THOMPSON aka SAMUEL COBB aka WILLIAM DAVIS aka NATHANIEL CLARK aka THOMAS COX aka JOHN THOMAS DARDEN aka THOMAS DARDEN"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nWe have carefully considered defendant\u2019s first, second, and fourth assignments of error. We find no prejudicial error in any of them and accordingly overrule them.\nIn his third assignment of error defendant contends the court erred in sentencing him in a separate judgment and commitment as an habitual felon in violation of G.S. 14-7.1 because being an habitual felon is not a substantive crime. We agree.\nIn State v. Allen, 292 N.C. 431, 435, 233 S.E. 2d 585, 588 (1977), our Supreme Court stated:\nThe only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. The effect of such a proceeding \u201cis to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past.\u201d Spencer v. Texas, supra, 385 U.S. at 556. Being an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. \u201cThe habitual criminal act . . . does not create a new and separate criminal offense for which a person may be separately sentenced but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment than ordinarily would be considered.\u201d State v. Tyndall, 187 Neb. 48, 50, 187 N.W. 2d 298, 300, cert. denied sub nom. Goham v. Nebraska, 404 U.S. 1004 (1971).\nFurther, as this Court stated in State v. Aldridge, 67 N.C. App. 655, 659, 314 S.E. 2d 139, 143 (1984): \u201cUpon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon.\u201d\nBecause the trial court erred in treating the violation of the Habitual Felon Act as a separate substantive offense rather than as a punishment enhancer as required by State v. Allen, supra, defendant is entitled to a new sentencing hearing. At the new sentencing hearing each of the two underlying felonies herein should be treated as a Class C felony. G.S. 14-7.6.\nThe judgment in 85CRS7789 finding defendant guilty of being an habitual felon is vacated. The judgment finding defendant guilty of breaking or entering and larceny, 85CRS5711, is remanded for resentencing in accordance with this opinion.\nIn 85CRS7789, judgment vacated.\nIn 85CRS5711, remanded for resentencing.\nJudges Wells and Martin concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Associate Attorney General James A. Wellons, for the State.",
      "Paul Jones for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY THOMAS, JR., aka JOHNNY THOMAS TAYLOR aka THOMAS TAYLOR aka JOHNNY COX aka JOHNNY THOMPSON aka SAMUEL COBB aka WILLIAM DAVIS aka NATHANIEL CLARK aka THOMAS COX aka JOHN THOMAS DARDEN aka THOMAS DARDEN\nNo. 868SC337\n(Filed 2 September 1986)\nCriminal Law 8 141\u2014 habitual felon \u2014 treated as substantive offense \u2014 new hearing\nDefendant was entitled to a new sentencing hearing where the trial court treated a violation of the Habitual Felon Act as a separate substantive offense rather than as a punishment enhancer. N.C.G.S. \u00a7 14-7.6.\nAppeal by defendant from Lewis, Jr., Judge. Judgments entered 15 November 1985 in Superior Court, Lenoir County. Heard in the Court of Appeals 29 August 1986.\nOn 3 September 1985 defendant was indicted on charges of breaking and entering, larceny pursuant to a breaking and entering, receiving stolen goods and possessing stolen goods. Defendant was also charged in a separate bill of indictment as an habitual felon in violation of G.S. 14-7.1. The jury found defendant guilty of felonious breaking and entering, felonious larceny, and \u201cbeing an habitual felon.\u201d\nThe court sentenced defendant to a term of seven years upon his conviction of felonious breaking and entering and felonious larceny, and in a separate judgment and commitment sentenced him to a fourteen year consecutive sentence for the offense of being an \u201cHabitual Felon.\u201d Defendant appealed.\nAttorney General Thornburg, by Associate Attorney General James A. Wellons, for the State.\nPaul Jones for defendant appellant."
  },
  "file_name": "0682-01",
  "first_page_order": 710,
  "last_page_order": 712
}
