Opinion
No. COA02-1560
Filed 15 July 2003 This case not for publication
Appeal by defendant from judgment entered 12 June 2002 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 7 July 2003.
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.
Durham County No. 95 CRS 634.
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 State v. Wilder, 123 N.C. App. 789, 475 S.E.2d 741 (1996) (unpublished).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 court vacated 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 State v. Wilder, 140 N.C. App. 791, 541 S.E.2d 237 (2000) (unpublished).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).