State v. Spruill

366 S.E.2d 547 (1988)

89 N.C. App. 580

STATE of North Carolina v. Hubert Earl SPRUILL.

No. 872SC904.

Court of Appeals of North Carolina.

April 5, 1988.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Lorinzo L. Joyner, Raleigh, for the State.

James R. Batchelor, Jr., Williamston, for defendant-appellant.

WELLS, Judge.

Under his first assignment of error, defendant suggests that the trial court erred in denying his Motion to Dismiss for lack of a speedy trial. Defendant was indicted on 28 July 1986 and his trial began on 27 April 1987. Defendant concedes, however, that sufficient continuances were granted to him to deny him relief under the North Carolina Speedy Trial Act (N.C.Gen.Stat. § 15A-701, et seq.). Defendant does not contend that his constitutional rights to a speedy trial were violated. This assignment is overruled.

Defendant next contends that the trial court erred in failing to dismiss or arrest judgment in one of the larceny cases, contending that the larceny of the car keys and the larceny of the car were "substantially" the same offense. We disagree. The evidence was that defendant broke into J & M's building and took a number of car keys, property of value, and then selected a car to drive away from J & M's lot. This shows two separate acts of larceny, separated in time and space, involving separate property. We cannot accept defendant's argument that under these facts there was but a single transaction showing only one act of larceny. For cases where on similar facts our Supreme Court rejected similar arguments, see State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984) and State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980). This assignment is overruled.

Defendant next contends that the trial court erred in sentencing him as a *548 habitual felon because there was a variance in the indictment and proof at trial as to one of the three prior offenses forming the basis for this charge. The indictment alleged as one of defendant's three prior felonies that he escaped from prison on 28 October 1977. Prior to trial, defendant stipulated that this offense actually occurred on 7 October 1977. This was not a fatal variance. Time was not of the essence as to this offense, and defendant's stipulation establishes that he was not surprised by the variance. This assignment is overruled.

No error.

EAGLES and GREENE, JJ., concur.