An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-851
            

NORTH CAROLINA COURT OF APPEALS
    

Filed: 20 May 2003

STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            No. 96 CRS 39269
STEPHEN DAVID BROOKS

    Appeal by defendant from judgment entered 25 May 2001 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 March 2001.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Stephen David Brooks, pro se.

    LEVINSON, Judge.

    On 28 August 1998, defendant was convicted of first degree kidnapping (96 CRS 39268), assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) (96 CRS 39269), and assault with a deadly weapon inflicting serious injury (96 CRS 39800). The same act by defendant constituting the element of “inflicting serious injury” in the AWDWIKISI charge also elevated what would have otherwise been second degree kidnapping to first degree kidnapping. Due to double jeopardy concerns, the trial court arrested the “inflicting serious injury” portion of the judgment in 96 CRS 39269, and subsequently sentenced defendant to a term of imprisonment of (1) a minimum of 188 months and a maximum of 235 months for first degree kidnapping (96 CRS 39268), (2) aminimum of 66 months and a maximum of 89 months for assault with a deadly weapon with intent to kill (96 CRS 39269), and (3) a minimum of 66 months and a maximum of 89 months for assault with a deadly weapon inflicting serious injury (96 CRS 39800).
    On appeal, this Court reversed defendant's conviction for first degree kidnapping (96 CRS 39268) and assault with a deadly weapon inflicting serious injury (96 CRS 39800). State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849 (2000). On 25 May 2001, the State filed a motion to pray judgment on the arrested portion of the AWDWIKISI conviction (96 CRS 39269). Because defendant's conviction of first degree kidnapping had been reversed, the same act used to elevate defendant's kidnapping conviction no longer barred entry of judgment on defendant's AWDWIKISI conviction. The court entered judgment on defendant's AWDWIKISI conviction under 96 CRS 39269, and sentenced defendant to a term of imprisonment for a minimum of 188 months and a maximum of 235. As defendant had already served 1759 days confinement as a result of the judgment against him under 96 CRS 39269 for assault with a deadly weapon with intent to kill, he was given credit on the judgment for that same period.
    Defendant now contends that because the trial court previously sentenced him pursuant to his conviction in 96 CRS 39269, the prohibition against double jeopardy prevents the trial court from re-sentencing him. See North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656 (1969). Relying on Ex parte Lange, 85 U.S. 163, 21 L. Ed. 872 (1874) (overruled on other grounds), defendant arguesthat although double jeopardy does not prohibit re-sentencing on convictions for which no punishment has been imposed, it does prohibit re-sentencing where punishment has already been imposed.
    Although we agree with defendant that “the Constitution was designed as much to prevent the criminal from being twice punished for the same offen[s]e as from being twice tried for it,” id. at 173, 21 L. Ed. at 878, we do not find that defendant, here, has been twice punished for the same crime. In Ex parte Lange, petitioner was found guilty of misappropriating government property. Id. The applicable statute provided for imprisonment for not more than one year or a fine of not less than $10 nor more than $200. Id. The trial court sentenced petitioner to one year imprisonment and to pay a $200 fine. Id. The United States Supreme Court held:
        We are of opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone. That the principle we have discussed then interposed its shield, and forbid that he should be punished again for that offen[s]e. The record of the court's proceedings, at the moment the second sentence was rendered, showed that in that very case, and for that very offen[s]e, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law prescribed. . . .

Id. at 176, 21 L. Ed. at 878-79.
    Ex parte Lange is inapplicable to the instant case. Defendant was currently serving his term of imprisonment under 96 CRS 39269, and the trial court expressly granted defendant creditfor the period of time he had already served in prison under 96 CRS 39269. Defendant has not been twice punished under 96 CRS 39269.
    Furthermore, the North Carolina Supreme Court has held:
        [W]hen judgment is arrested on predicate felonies in a felony murder case to avoid a double jeopardy problem, the guilty verdicts on the underlying felonies remain on the docket and judgment can be entered if the conviction for the murder is later reversed on appeal, and the convictions on the predicate felonies are not disturbed upon appeal.

State v. Pakulski, 326 N.C. 434, 439-40, 390 S.E.2d 129, 132 (1990), disc. review denied, 332 N.C. 670, 424 S.E.2d 415 (1992). The Court found “that following the reversal on appeal of the felony murder conviction, there was no legal impediment to entry of judgment and imposition of sentence on the valid verdicts of guilty of breaking or entering and larceny.” Id. at 436, 390 S.E.2d at 130. Similarly, here, upon reversal of defendant's first degree kidnapping conviction, there was no barrier to entry of judgment on the arrested portion of defendant's AWDWIKISI conviction. This assignment of error is overruled.
    After careful review, we find defendant's remaining assignments of error without merit. They are, therefore, overruled.
    Affirmed.
    Judges MCGEE and MCCULLOUGH concur.
    Report per Rule 30(e).    

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