State v. Penland , 89 N.C. App. 350 ( 1988 )

365 S.E.2d 721 (1988)

STATE of North Carolina
v.
Hubert Clinton PENLAND.

No. 8717SC822.

Court of Appeals of North Carolina.

March 15, 1988.

Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. Thomas D. Zweigart, Research Triangle Park, for State.

V.L. DeHart, Jr., Danbury, for defendant appellant.

ARNOLD, Judge.

In his sole assignment of error, defendant contends the trial court erred in considering the habitual felon charge as a separate crime and in sentencing him separately as an habitual felon. We agree.

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977). Being an habitual felon is not a crime but is a status. Id. The status itself, standing alone, will not support a criminal sentence. Id. A court may not treat the violation of the Habitual Felon Act as a substantive offense. State v. Thomas, 82 N.C.App. 682, 347 S.E.2d 494 (1986). Upon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon. G.S. 14-7.6; State v. Aldridge, 67 N.C.App. 655, 314 S.E.2d 139 (1984).

In the present case, the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon. Defendant is entitled to a new sentencing hearing in which the convictions for assault with a deadly weapon upon a law enforcement officer and being an habitual felon shall be treated as a single Class C felony.

The judgment finding defendant guilty of being an habitual felon is vacated. The judgment finding defendant guilty of assault with a deadly weapon upon a law enforcement officer is remanded for resentencing in accordance with this opinion.

Vacated and remanded for resentencing.

PHILLIPS and COZORT, JJ., concur.