Opinion
No. COA11–1442.
2012-07-17
STATE of North Carolina v. Lamont Kasheen FRIEND.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Russell J. Hollers, III, for defendant appellant.
Appeal by defendant from judgments entered 9 June 2011 by Judge Bradley Letts in Watauga County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Russell J. Hollers, III, for defendant appellant.
McCULLOUGH, Judge.
Lamont Kasheen Friend (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of six counts of felony violation of a domestic violence protective order and of attaining the status of an habitual felon. Because the indictments charging defendant with violation of a domestic violence protective order are only sufficient to charge the misdemeanor offense, we vacate the judgments entered and remand for entry of judgments on defendant's convictions for misdemeanor violation of a domestic violence protective order.
Defendant argues the trial court erred in denying his motions to dismiss the felony charges against him and in entering judgments against him upon his convictions for felony violation of a domestic violence protective order because the indictments charging him with violation of a domestic violence protective order violated the mandates of N.C. Gen.Stat. § 15A928 (2011). Consequently, they were only sufficient to charge him with misdemeanor violation of a domestic violence protective order. The State concedes that the indictments did not conform to the requirements of N.C. Gen.Stat. § 15A–928, but argues the error is not jurisdictional, and should be subject to waiver and harmless error analysis.
N.C. Gen.Stat. § 15A–928 provides, in relevant part,
(a) When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment or information for the higher offense may not allege the previous conviction....
(b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principal indictment as a separate count.
N.C. Gen.Stat. § 15A–928(a), (b). A defendant is guilty of felony violation of a domestic violence protective order when he knowingly violates a valid domestic violence protective order after having been previously convicted of two misdemeanor violations of a domestic violence protective order. N.C. Gen.Stat. § 50B–4.1(f) (2011). Therefore, to properly charge a defendant with felony violation of a domestic violence protective order, the State must comply with N.C. Gen.Stat. § 15A–928 and charge the prior two misdemeanor convictions in either a special indictment or in a separate count in the principal indictment. This Court has held that a violation of N.C. Gen.Stat. § 15A–928 is jurisdictional, and deprives the trial court of its jurisdiction over the felony charge. State v. Williams, 153 N.C.App. 192, 194–95, 568 S.E.2d 890, 892 (2002), disc. review improvidently allowed, 357 N.C. 45, 577 S.E.2d 618 (2003); State v. Sullivan, 111 N.C.App. 441, 442–44, 432 S.E.2d 376, 377–78 (1993).
Here, the State did not use a special indictment to charge defendant's prior misdemeanor convictions and did not incorporate the misdemeanor convictions in a separate count for each principal indictment. Thus the principal indictments in this case only charged defendant with misdemeanor violations of a domestic violence protective order, and the trial court lacked jurisdiction to enter judgment on the felony convictions. Williams, 153 N.C.App. at 194–95, 568 S.E.2d at 892. “When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.” State v. Petersilie, 334 N.C. 169, 175–76, 432 S.E.2d 832, 836 (1993) (internal quotation marks and citation omitted). Accordingly, we vacate the judgments entered and remand for entry of judgments on defendant's convictions for misdemeanor violation of a domestic violence protective order. Additionally, because there is no felony conviction to which the habitual felon indictment can attach, that indictment is dismissed and defendant's conviction for attaining the status of an habitual felon is also vacated.
Vacated and remanded. Judges HUNTER (Robert C.) and ELMORE concur.
Report per Rule 30(e).