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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1544


Filed: 19 June 2007


         v.                        Guilford County
                                Nos. 05 CRS 23184, 82794-96
KENNETH WILLIAM COBLE                    

    Appeal by defendant from judgments entered 30 August 2006 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Associate Attorney General LaToya B. Powell, for the State.

    Brannon Strickland, PLLC, by Anthony M. Brannon, for defendant-appellant.

    MARTIN, Chief Judge.

     Defendant Kenneth William Coble was convicted of possession of burglary tools, misdemeanor breaking or entering, misdemeanor injury to personal property, and being an habitual felon. The trial court sentenced defendant to a term of 140 to 177 months imprisonment for the possession of burglary tools and habitual felon charges, as well as concurrent sentences of 120 days imprisonment for misdemeanor breaking or entering, and 60 days imprisonment for misdemeanor injury to personal property. Defendant appeals.     
     Defendant argues that the trial court erred by overruling his objection to one of the predicate felonies used to support thehabitual felon charge. The habitual felon indictment alleged that defendant had been convicted of felonious larceny on 6 July 1993. However, defendant claims that the indictment underlying the felonious larceny conviction was facially invalid and the trial court lacked jurisdiction to enter judgment against him. Accordingly, defendant argues that because the larceny judgment was void, the habitual felon indictment was likewise invalid.
    “When appealing the use of a prior conviction as a partial basis for an habitual felon indictment, inquiries are permissible only to determine whether the State gave defendant proper notice that he was being prosecuted for some substantive felony as a recidivist, pursuant to the procedure provided in N.C. Gen. Stat. § 14-7.3 (1993).” State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d 771, 773 (1996), aff'd per curiam, 346 N.C. 165, 484 S.E.2d 525 (1997) . “Questioning the validity of the original conviction is an impermissible collateral attack.” Id. A “defendant may not collaterally attack a prior conviction which is the basis of an habitual felon charge.” Id. at 501, 473 S.E.2d at 774; see also State v. Dammons, 128 N.C. App. 16, 26, 493 S.E.2d 480, 486 (1997).     No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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