State v. Green , 309 N.C. 623 ( 1983 )

308 S.E.2d 326 (1983)

STATE of North Carolina
v.
Forrest GREEN.

No. 269A83.

Supreme Court of North Carolina.

November 3, 1983.

Rufus L. Edmisten, Atty. Gen. by Stephen F. Bryant, Asst. Atty. Gen., Raleigh, for state-appellant.

Franklin B. Johnston, Washington, for defendant-appellee.

PER CURIAM.

The trial court found as a factor in aggravation that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days' confinement. G.S. 15A-1340.4(a)(1)(o). The defendant did not object to the introduction of evidence of his prior conviction or convictions, nor did he allege that he was indigent and not represented by counsel at the time of his prior conviction or convictions. Nevertheless, the Court of Appeals held that the State's failure to show that, at the time of his prior conviction or convictions, the defendant either was not indigent or was represented by or waived counsel rendered the finding of this aggravating factor by the trial court erroneous. This holding by the Court of Appeals was error. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983).

The Court of Appeals also held that the trial court erred in finding as a factor in aggravation that the defendant was armed with or used a deadly weapon at the time of the crime. G.S. 15A-1340.4(a)(1)(i). In its new brief filed in this Court, the State did not present or discuss any question concerning this holding by the Court of Appeals. Therefore, we leave undisturbed the holding of the Court of Appeals that this factor in aggravation was improperly found. Rule 28, North Carolina Rules of Appellate Procedure. If called upon during the resentencing hearing to determine whether this factor in aggravation is present, the trial court should review the evidence presented at that time in light of the recent decision of this Court in State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983).

When the trial court erroneously finds any aggravating factor to exist, the defendant is entitled to a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). As we have neither reviewed nor disturbed the holding of the Court of Appeals that the trial court erred in finding as a factor in aggravation that the defendant was armed with or used a deadly weapon at the time of the crime, the opinion of the Court of Appeals as modified herein must be affirmed.

MODIFIED AND AFFIRMED.