An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-313


Filed: 7 October 2003


         v.                        Polk County
                                No. 99 CRS 440

    On writ of certiorari from judgment entered 7 August 2001 by Judge James Downs in Polk County Superior Court. Heard in the Court of Appeals 25 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    Office of the Appellate Defender, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

    GEER, Judge.

    Defendant Rickey Allen Tucker appeals from his conviction of habitual impaired driving. As the State concedes, by notifying the potential jurors during jury selection that defendant was charged "with the offense of habitual driving while impaired," the trial court failed to comply with N.C. Gen. Stat. § 15A-928 (2001). We reverse and remand for a new trial.
    Defendant was arrested on 12 March 1999 and charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2001). Subsequently, defendant was indicted for and found guilty of habitual impaired driving. The trial court sentenced defendantto 34 months to 41 months imprisonment. Defendant failed to timely perfect his appeal and, on 6 August 2002, defendant filed a petition for writ of certiorari seeking a belated appeal. This Court allowed the petition for writ of certiorari to review the judgment entered against him on 7 August 2001 by Judge James Downs.
    During jury selection at defendant's trial, the trial court informed prospective jurors: "Mr. Tucker is charged . . . with the offense of habitual driving while impaired." The case proceeded to trial with the State calling the arresting officer as its only witness. After his testimony, the prosecutor stated out of the presence of the jury, "[F]rom what I understand the defendant has no objection to the State introducing his prior record, certified by the clerk's office. That would be three prior[s] which serve for the basis for the charge. But other than that the State would have no other evidence." The court then recessed for the day.
    On the next morning, with the jury out of the courtroom, the State moved to introduce exhibits regarding defendant's prior convictions. Defense counsel stated, "Your Honor, there's no objection to that. We stipulated to that earlier." Defense counsel then made a motion to dismiss in the course of which he stipulated that defendant had three previous convictions within the prior seven years.
    When the jury returned, the State moved to introduce a certified computer printout showing defendant's conviction for driving while impaired in 1992 and two 15 October 1996 judgments showing convictions for impaired driving. Defense counsel did notobject. The trial court admitted the exhibits and they were published to the jury. The trial court then submitted to the jury the possible verdicts of guilty of habitual impaired driving or not guilty; the jury found defendant guilty.
    N.C. Gen. Stat. § 15A-928 (2001) specifies the procedure to be used in cases where "the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter":
            (a) . . . If a reference to a previous conviction is contained in the statutory name or title of the offense, the name or title may not be used in the indictment or information, but an improvised name or title must be used which labels and distinguishes the offense without reference to a previous conviction.
            (b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principal indictment as a separate count. . . . the State may not refer to the special indictment or information during the trial nor adduce any evidence concerning the previous conviction alleged therein.
            (c) After commencement of the trial and before the close of the State's case, the judge in the absence of the jury must arraign the defendant upon the special indictment or information, and must advise him that he may admit the previous conviction alleged, deny it, or remain silent. Depending upon the defendant's response, the trial of the case must then proceed as follows:
            (1)    If the defendant admits the previous conviction, that element of the offense charged in the indictment or information is established, no evidence in support thereof may beadduced by the State, and the judge must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof.
            (2)    If the defendant denies the previous conviction or remains silent, the State may prove that element of the offense charged before the jury as a part of its case. This section applies only to proof of a prior conviction when it is an element of the crime charged, and does not prohibit the State from introducing proof of prior convictions when otherwise permitted under the rules of evidence.
This statute applies to trials for habitual impaired driving. See, e.g., State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002).
    Section 15A-928 requires that the jury not be informed of the fact that defendant has been charged with a recidivism offense until defendant has had the chance to stipulate to his prior convictions. N.C. Gen. Stat. § 15A-928(a) and (b). Furthermore, the existence of the prior convictions becomes a question for the jury if defendant challenges the prior convictions. N.C. Gen. Stat. § 15A-928(c)(2).
    Here, however, the trial court announced to the jury that defendant had been charged with habitual impaired driving at the commencement of the case and before defendant had a chance to stipulate to his prior convictions. In addition, the trial court submitted the case to the jury with reference to defendant'sprevious convictions even though defendant stipulated to the existence of the prior convictions. Because the trial court did not follow the requirements of N.C. Gen. Stat. § 15A-928, we conclude defendant is entitled to a new trial. Because of our disposition of this case, we deem it unnecessary to discuss defendant's remaining assignments of error.
    For the reasons stated above, this case is remanded to the Superior Court of Polk County in order that defendant may receive a new trial.

    New trial.
Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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