State v. Coffey , 14 N.C. App. 642 ( 1972 )

MALLARD, Chief Judge.

The evidence for the State tended to show that on the date alleged in the warrant the defendant was arrested while operating a motor vehicle on a public highway in Cabarrus County, and that at the time thereof he was under the influence of intoxicating liquor. Approximately an hour after he was arrested, the defendant took a breathalyzer test that showed that the percentage of alcohol by weight in his blood was eighteen-hundredths percent. The defendant offered no evidence.

Defendant’s sole contention is that the judge of the superior court committed error in imposing a more severe sentence than that imposed in the recorder’s court. Defendant states in his brief that he is aware of the decision of the Supreme Court of North Carolina in State v. Speights, 280 N.C. 137, 185 S.E. 2d 152 (1971) holding that upon appeal to the superior court from the district court a defendant’s constitutional rights are not violated by the imposition of a greater sentence after conviction in superior court than that imposed in the district court. The defendant argues, however, that this is contrary to the holding of the United States Supreme Court in the case of North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed. 2d 656, 89 S.Ct. 2072 (1969). We do not agree. We hold that the rule set forth in Speights is applicable and controls. In the trial we find no error.

No error.

Judges Campbell and Brock concur.