STATE OF NORTH CAROLINA
v. Durham County
No. 95 CRS 634
WILLIE JAMES WILDER
Roy Cooper, Attorney General by Thomas H. Moore, Assistant
Attorney General, for the State.
Kurtz & Blum, P.L.L.C., by Howard A. Kurtz, for defendant-
appellant.
STEELMAN, Judge.
On 19 July 1995, defendant was convicted of assault with a
deadly weapon with intent to kill inflicting serious injury. The
trial court, on 25 October 1995, sentenced him to a term of 144 to
182 months imprisonment, and defendant appealed. This Court found
no error in the trial, but remanded the case for resentencing.
State v. Wilder, 123 N.C. App. 789, 475 S.E.2d 741 (1996)
(unpublished). On remand, the trial court sentenced defendant to
a term of 140 to 177 months' imprisonment, and defendant again
appealed. After determining on 11 June 1999 that there was no
realistic possibility that a transcript of this defendant's
resentencing hearing [would] ever be produced, the trial courtvacated the 12 November 1996 judgment and resentenced defendant on
30 June 1999 to a term of 140 to 177 months imprisonment.
Defendant appealed, and this Court again remanded the case for
resentencing after finding error. State v. Wilder, 140 N.C. App.
791, 541 S.E.2d 237 (2000) (unpublished). On 12 June 2002, the
trial court resentenced defendant to a term of 144 to 182 months
imprisonment. From the trial court's judgment, defendant appeals.
Defendant contends, and the State correctly concedes, that the
trial court committed reversible error by imposing a more severe
sentence for the same offense on remand. When a . . . sentence
imposed in superior court has been set aside on direct review
. . . , the court may not impose a new sentence for the same
offense . . . which is more severe than the prior sentence less the
portion of the prior sentence previously served. N.C. Gen. Stat.
§ 15A-1335 (2001).
Here, the trial court resentenced defendant on 12 June 2002
upon his conviction for assault with a deadly weapon with intent to
kill inflicting serious injury to a term of 144 to 182 months'
imprisonment, which is more severe than the prior sentence of 140
to 177 months imprisonment imposed by the trial court on 30 June
1999 for the same offense. Defendant must therefore be given a new
sentencing hearing, and his new sentence may not be more severe
than the sentence imposed on 30 June 1999. See id.; see also State
v. Hemby, 333 N.C. 331, 334, 426 S.E.2d 77, 78 (1993).
REMANDED FOR RESENTENCING.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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