State v Becton, (04-1076) 05/03/2005

On a writ of certiorari from judgments entered 9 August 1999 by Judge Ronald Stephens in Wake County Superior Court. Heard in the Court of Appeals 25 April 2005.

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

Nora Henry Hargrove for defendant-appellant.

    ELMORE, Judge.


    Defendant was charged by indictments with: (1) robbery with a dangerous weapon for the taking of property of Summit Credit Union from the person and presence of Debra Gile on 21 December 1998 (98 CRS 64472); (2) possession of a stolen vehicle on 21 December 1998 (99CRS 00013); (3) robbery with a dangerous weapon for the taking of the property of Branch Banking and Trust Company from the person and presence of Terry Allred Frye on 24 November 1998 (99 CRS 1280); (4) robbery with a dangerous weapon for the taking of the property of Branch Banking and Trust Company from the person and presence of Amy Elizabeth Preddy on 24 November 1998 (99 CRS 63109); and (5) robbery with a dangerous weapon for the takingof the property of Summit Credit Union from the person and presence of Bonnie Driver on 21 December 1998 (99 CRS 63110). Defendant was found guilty of all charges. He was sentenced by four judgments to four consecutive terms of imprisonment of a minimum of 96 months and a maximum of 125 months.
    By an unpublished opinion filed by this Court on 3 December 2002, his conviction of felonious possession of a stolen vehicle was vacated and remanded for re-sentencing on a conviction of the lesser offense of misdemeanor possession of stolen property. No error was found otherwise. Defendant's petitions for certiorari and discretionary review were denied by the North Carolina Supreme Court.
    By a motion for appropriate relief dated 30 December 2002 and amended on 10 March 2003, defendant contended, inter alia, he was subjected to double jeopardy, vindictive prosecution, and ineffective assistance of counsel. The trial court entered an order on 2 April 2003 denying the motion for appropriate relief on the basis of the statutory bar of N.C. Gen. Stat. § 15A-1419. On 24 April 2003 defendant filed a petition for writ of certiorari seeking review of the order denying the motion for appropriate relief. On 14 May 2003 this Court granted a writ of certiorari “for the limited purpose of reviewing the judgments . . . to determine whether the judgments violate double jeopardy.”
     Defendant contends that he was illegally sentenced four times for two offenses. He argues that he could not be separately punished for robbery of each of the entity's employees from whom hetook the entity's money or property. The State concedes that the court committed error. The facts in this appeal are remarkably similar to State v. Becton (this same defendant but different cases), 163 N.C. App. 592, 595-96, 594 S.E.2d 143, 145 (2004), in which this Court held that the protection against double jeopardy is violated by convicting and punishing a defendant for robbery of each employee of an entity from whose presence the entity's property is taken. This Court relied on State v. Potter, 285 N.C. 238, 253, 204 S.E.2d 649, 659 (1974), in which the Court held that “when the lives of all employees in a store are threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer's money or property, a single robbery with firearms is committed.” The Court recognized an exception for when the defendant took or attempted to take the employee's own personal property or injured the employee.
    Here, all of the named individuals were acting within the scope of their employment at the time their employer's property was taken in their presence. The indictments do not charge that defendant took, or attempted to take, the individuals' property or that defendant injured the employees. We conclude that defendant could be convicted and sentenced only for one robbery of the Summit Credit Union and one robbery of the Branch Banking and Trust. Therefore, we remand the matter with instructions to the trial court to vacate one judgment arising out of the robbery of the Summit Credit Union and one judgment arising out of the robbery of the Branch Banking and Trust bank.      Defendant also contends that the court erred by failing to conduct an evidentiary hearing on the motion and to make findings of fact addressing all of the allegations of the motion. As these contentions are outside the purview of this Court's limited purpose for issuance of the writ, they are not properly before the Court and will not be considered.
    Vacated and remanded.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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