{
  "id": 8358639,
  "name": "STATE OF NORTH CAROLINA v. EDWIN BRENT WARRICK",
  "name_abbreviation": "State v. Warrick",
  "decision_date": "1987-11-03",
  "docket_number": "No. 8712SC311",
  "first_page": "505",
  "last_page": "507",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state",
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      "year": 1984,
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  "last_updated": "2023-07-14T18:10:55.356094+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Cozort and Greene concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EDWIN BRENT WARRICK"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nDefendant was convicted of breaking and entering a building occupied by a pawn shop business, a Class H felony in violation of G.S. 14-54, the presumptive term for which is three years. G.S. 15A-1340.4. The only question raised by defendant\u2019s appeal is the validity of the probationary ten-year prison sentence that was imposed. The validity of the sentence depends upon the validity of a non-statutory factor in aggravation \u2014 that \u201c[tjhe jury by its verdict found that the defendant committed per jury\u201d \u2014 which the court found and deemed to outweigh two factors found in mitigation.\nA finding of perjury by the defendant as an aggravating factor is not forbidden by the Fair Sentencing Act, and can be properly made if \u201cthe finding meets the requirements of the statute,\u201d so our Supreme Court held in State v. Thompson, 310 N.C. 209, 227, 311 S.E. 2d 866, 876 (1984). The requirements of the statute for finding a factor in aggravation are that the judge find that the factor is \u201cproved by the preponderance of the evidence,\u201d and that the factor be \u201creasonably related to the purposes of sentencing.\u201d G.S. 15A-1340.4(a). In this case the court\u2019s finding in aggravation does not meet the requirements of the statute and a recital of the State\u2019s evidence and of defendant\u2019s testimony that conflicted with it would serve no purpose. For the judge did not find from a preponderance of the evidence that the defendant committed perjury in testifying in his own defense; instead he found from a preponderance of the evidence that the jury by its verdict had found that the defendant committed perjury. Even if the jury verdict could be so construed, and we do not believe that it can, a finding for sentencing purposes that the jury has determined a fact is not a finding that the judge has made the same determination, as the statute requires. As Judge Butzner noted in United States v. Moore, 484 F. 2d 1284 (4th Cir. 1973), a verdict of guilty means only that guilt has been proved beyond a reasonable doubt; it does not ipso facto mean that a testifying defendant committed perjury. Too, though proper findings of perjury by a testifying defendant are permissible, in State v. Thompson, supra, our Supreme Court took pains not to encourage such findings; and to equate a jury verdict of guilty of breaking or entering with a finding of perjury by a testifying defendant would be such encouragement. Thus, the judgment appealed from must be vacated and the matter remanded to the trial court for resentencing.\nVacated and remanded.\nJudges Cozort and Greene concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Associate Attorney General Gerald M. Swartzberg, for the State.",
      "Russ, Worth & Cheatwood, by Jerome P. Trehy, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EDWIN BRENT WARRICK\nNo. 8712SC311\n(Filed 3 November 1987)\nCriminal Law \u00a7 138.29\u2014 perjury shown by jury verdict \u2014 improper aggravating factor\nThe trial court erred in finding as an aggravating factor that \u201cthe jury by its verdict found that the defendant committed perjury\u201d since a verdict of guilty does not ipso facto mean that a testifying defendant committed perjury, and a finding that the jury has determined a fact is not a finding that the trial judge has made the same determination from a preponderance of the evidence as N.C.G.S. \u00a7 15A-1340.4(a) requires.\nAppeal by defendant from Right, Judge. Judgment entered 19 November 1986 in Superior Court, Cumberland County. Heard in the Court of Appeals 25 September 1987.\nAttorney General Thornburg, by Associate Attorney General Gerald M. Swartzberg, for the State.\nRuss, Worth & Cheatwood, by Jerome P. Trehy, Jr., for defendant appellant."
  },
  "file_name": "0505-01",
  "first_page_order": 533,
  "last_page_order": 535
}