State v. Harris , 65 N.C. App. 816 ( 1984 )

Menu:

310 S.E.2d 120 (1984)
STATE of North Carolina
v.
Roger Dan HARRIS.
No. 8217SC1328.
Court of Appeals of North Carolina.
January 3, 1984.
*121 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Appellate Defender Stein by Asst. Appellate Defender Ann B. Petersen, Raleigh, for defendant-appellant.

PHILLIPS, Judge.

In sentencing the defendant the Fair Sentencing Act was not complied with and this matter is remanded to the trial court for re-sentencing.

Pecuniary gain is inherent in the crime of larceny, which the Legislature no doubt took into account when establishing a presumptive sentence for it, and the court erred in using that fact to increase defendant's *122 sentence. State v. Huntley, 62 N.C. App. 577, 303 S.E.2d 330 (1983).

It was also error to use as an aggravating factor that the crimes involved great monetary value, because the only evidence of value that was before the court was the evidence that was necessary to show that the felony larcenies charged had been committed. State v. Simpson, 61 N.C.App. 151, 300 S.E.2d 412 (1983).

Too, since the only reference to defendant's prior convictions was a statement by the District Attorney that defendant had "a record of prior convictions," the defendant's contention that this aggravating factor was not properly established is also well taken. It was not even established that the convictions were punishable by more than sixty days confinement, as the statute requires. While the methods of proving such convictions stated in G.S. 15A-1340.4(e) are not exclusive, State v. Massey, 59 N.C.App. 704, 298 S.E.2d 63 (1982), proof of some kind is still necessary and a statement by the District Attorney, standing alone, is not proof.

Finally, since defendant's evidence that restitution was made to the victims of his larcenies was unrefuted and apparently recognized by the State to be true, it was error for the court not to find a mitigating factor to that effect. State v. Wood, 61 N.C.App. 446, 300 S.E.2d 903, rev. denied, 308 N.C. 547, 302 S.E.2d 884 (1983).

Remanded for re-sentencing.

VAUGHN, C.J., and WHICHARD, J., concur.