State v. Simpson , 61 N.C. App. 151 ( 1983 )

VAUGHN, Chief Judge.

Defendant contends the trial court erred in imposing a sentence in excess of the presumptive sentence because the aggravating factors were not supported by the evidence. Defendant contends that an aggravating factor, that the offense was committed for the purpose of avoiding arrest, was improperly found because the evidence used to prove the factor in aggravation was necessary to prove an element of the offense.

“Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .” G.S. 15A-1340.4(a)(l). The offense of felonious hit and run is as follows: “The driver of any vehicle involved in an accident or collision resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident or collision, and any person violating this provision shall upon conviction be punished as provided in G.S. 20-182.” G.S. 20466(a). The elements of the offense are that defendant was driving the vehicle; the vehicle came into contact with another person resulting in injury or death; and defendant failed to stop immediately, knowing he had struck the victim. State v. Fearing, 304 N.C. 471, 284 S.E. 2d 487 (1981). Defendant contends that since the accident occurred while he was avoiding arrest the “run” element of hit and run was used to prove an aggravating factor. Defendant, however, had driven several blocks in attempting to avoid arrest before the collision occurred. His avoiding arrest occurred before the hit and run, and was not evidence necessary to prove an element of the offense.

Defendant’s next argument is that the trial judge erred in failing to find the following mitigating factors: “Prior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer,” and “The defendant has been a person of good character or has had a good reputation in the community in which he lives.” There was absolutely no evidence introduced at the sentencing hearing to support either of these mitigating factors, and the trial judge did not err by not finding that they existed.

Defendant also argues that the trial court erred in ordering restitution as a condition of work-release when there was no evidence supporting the amount of restitution ordered.

G.S. 148-33.2(c) authorizes the court to impose restitution as a condition of attaining work-release privileges. G.S. 15A-1343(d) provides, in part:

When restitution or reparation is a condition imposed, the court shall take into consideration the resources of the defendant, his ability to earn, his obligation to support dependents, and other such matters as shall pertain to his ability to make restitution or reparation. The amount must be limited to that supported by the record, and the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay.

It is obvious from the description of the injuries to the victim that defendant will never be able to make full restitution, and the judge was correct in his determination that partial restitution should be required. He erred, however, in ordering defendant to pay one-half of his earnings while on work-release or parole without fixing a maximum supported by the record as required by G.S. 15A-1343(d).

That part of the judgment ordering restitution is vacated, and the case is remanded for the entry of judgment consistent with this opinion.

Remanded.

Judges Wells and Braswell concur.