State v. Malone

326 S.E.2d 302 (1985)

STATE of North Carolina v. Robert Charles MALONE.

No. 8421SC391.

Court of Appeals of North Carolina.

March 5, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Douglas A. Johnston, Raleigh, for the State.

Adam Stein, Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Judge.

The court found as an aggravating factor that defendant had a prior conviction punishable by more than sixty days' confinement. G.S. 15A-1340.4(a)(1)(o ). It indicated that the conviction for auto larceny, for which defendant was serving time when he escaped, was the basis of the finding. Defendant contends that use of the conviction for which he was serving time when he escaped to aggravate his sentence for the escape is prohibited by the provision that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation." G.S. 15A-1340.4(a)(1). We are constrained to agree.

Defendant pled guilty to a violation of G.S. 148-45(b)(1) (Cum.Supp.1983), which provides:

Any person in the custody of the Department of Correction, in any of the classifications hereinafter set forth, who shall escape ... from the State prison system, shall ... be punished as a Class J felon. (1) A prisoner serving a sentence imposed upon conviction of a felony.

This Court has stated that to sustain a conviction for escape the State must prove that the defendant was in lawful custody and was serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony. State v. Ledford, 9 N.C.App. 245, 246-47, 175 S.E.2d 605, 606 (1970). The elements of felonious *303 escape thus are (1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody. See State v. McCloud, 11 N.C.App. 425, 181 S.E.2d 204 (1971); N.C. P.I.Crim. 280.20.

To prove the second of the foregoing elements, the State must offer evidence of the felony conviction or plea for which defendant was in lawful custody when he escaped. The provision that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation," G.S. 15A-1340.4(a)(1), proscribes further use of that evidence to prove the statutory aggravating factor that defendant had prior convictions, G.S. 15A-1340.4(a)(1)(o ). The legislature, in setting the presumptive sentence for escape, presumably took into account that evidence of an underlying plea or conviction would be necessary to prove the offense.

We thus hold that use of the conviction for which defendant was in lawful custody when he escaped as an aggravating factor to enhance his sentence for the escape was improper.

The court also found as an aggravating factor that the offense involved damage causing great monetary loss. G.S. 15A-1340.4(a)(1)(m). The basis for this finding was evidence that a Department of Correction van collided with a Sheriff's Department car while both were chasing defendant, causing damage of approximately one thousand dollars to the van and two thousand dollars to the car.

We do not believe this evidence supports a finding of this statutory factor in aggravation. The factor was intended to apply only when the defendant himself inflicts damage causing great monetary loss, or the loss is directly occasioned by defendant's acts, not when some unforeseen consequence directly occasioned by actors other than the defendant occurs. The court thus erred in finding this factor.

While the court stated subsequent to the sentencing hearing that it would amend its order to eliminate this factor, but would impose the same sentence, the felony judgment findings in the record contain this factor. The case in any event must be remanded for resentencing; upon remand, this factor should not be considered or found.

Remanded for resentencing.

HEDRICK, C.J., and PARKER, J., concur.