A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA02-695


Filed: 5 November 2002


    v.                            Pitt County
                                No. 00 CRS 12704

    Appeal by defendant from judgment entered 27 November 2001 by Judge William C. Griffin, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 28 October 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    Brian Michael Aus for defendant-appellant.

    EAGLES, Chief Judge.

    Maurice Levon Barnes (“defendant”) appeals from the trial court's judgment finding him guilty of being an habitual felon. On appeal, defendant's sole assignment of error is that the trial court sentenced him as an habitual felon when all charges against him had been dismissed. After careful review of the record and briefs, we agree.
    On 31 March 2000, defendant was arrested for second-degree trespassing. As a result of a search incident to that arrest, defendant was also charged with possession with intent to sell or deliver cocaine and possession of drug paraphernalia. Following a voir dire at trial, the trial court denied defendant's motion tosuppress evidence relating to the drug charges. Defendant then pled guilty to being an habitual felon pursuant to a plea arrangement.
    Under the terms of the plea arrangement, the State dismissed the charges of second degree trespassing, possession with intent to sell or deliver cocaine, and possession of drug paraphernalia along with other unrelated charges. In accordance with the plea arrangement, the trial court sentenced defendant as an habitual felon to a term of 107 to 138 months imprisonment. From the trial court's judgment, defendant appeals.
    Defendant contends, and the State concedes, that the trial court erred by accepting his plea of guilty to being an habitual felon. He argues that after the State dismissed the substantive charges against him pursuant to the plea arrangement, there was no predicate felony conviction for which he could be sentenced as an habitual felon. We agree.
    “Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence. A court may not treat the violation of the Habitual Felon Act as a substantive offense.” State v. Penland, 89 N.C. App. 350, 351, 365 S.E.2d 721, 722 (1988) (citations omitted). Because there is no predicate felony conviction to be enhanced by defendant's habitual felon status, the judgment must be vacated. See State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977); State v. Little, 121 N.C. App. 619, 620, 468 S.E.2d 423, 424 (1996).     Vacated.
    Judges McCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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