State v. Taylor

328 S.E.2d 27 (1985)

STATE of North Carolina v. Thomas Albert TAYLOR.

No. 8420SC482.

Court of Appeals of North Carolina.

April 16, 1985.

*28 Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen. Thomas J. Ziko, Raleigh, for the State.

Taylor & Bower by H.P. Taylor, Jr., and George C. Bower, Jr., Wadesboro, for defendant appellant.

*29 PARKER, Judge.

Defendant assigns as error the finding in aggravation that "[T]he murder was a course of conduct in which defendant committed an act of violence against another person."

General Statute 15A-1340.4(a)(1)(o) prohibits, as an aggravating factor, convictions for offenses "joinable, under G.S. Chapter 15A, with the crime or crimes for which the defendant is currently being sentenced." This prohibits the trial judge from considering that defendant committed the joinable offense as an aggravating factor. State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984); State v. Puckett, 66 N.C.App. 600, 312 S.E.2d 207 (1984); State v. Winnex, 66 N.C.App. 280, 311 S.E.2d 594 (1984).

In State v. Lattimore, supra, the defendant pled guilty to attempted robbery with a firearm and second degree murder. Both sentences exceeded the presumptive term, and defendant appealed his life sentence for second degree murder pursuant to G.S. 15A-1444(a1). Defendant assigned as error the trial court's finding in aggravation that the victim of the attempted armed robbery was killed. Our Supreme Court agreed, holding that to permit the trial judge to find, as an aggravating factor, that defendant had committed the joinable offense would "virtually eviscerate the purpose and policy of the statutory prohibition." State v. Lattimore, 310 N.C. at 299, 311 S.E.2d at 879. Similarly, in the instant case, the "act of violence against another person," i.e., the murder of defendant's wife, cannot be considered an aggravating factor in sentencing defendant for the murder of his sister-in-law. For this reason we remand the case for resentencing.

Defendant brings forward several other assignments of error which are either without merit or relate to clerical errors which are not likely to reoccur on resentencing.

The weighing of aggravating and mitigating factors is within the sound discretion of the trial judge. State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658, review denied, 306 N.C. 745, 295 S.E.2d 482 (1982). In the instant case, however, where an aggravating factor was incorrect, the trial judge could not have properly balanced the aggravating and mitigating factors, and the case must be remanded for resentencing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Vacated and Remanded for resentencing.

ARNOLD and EAGLES, JJ., concur.