State v. Mixion , 110 N.C. App. 138 ( 1993 )

Judge COZORT

dissenting.

I concur with all of the majority opinion except that portion which concludes that the matter must be remanded for resentenc-ing. I find the trial court’s finding of the aggravating factor of prior conviction is supported by evidence properly before the trial court, and I vote no error.

At the beginning of the trial, on 1 April 1991, the State filed with the court a notice to the defendant that the State intended to use defendant’s record of prior convictions during cross-examination if the defendant took the stand, and in its case in chief if any prior conviction involved Sylvia Mixion. Attached to the notice was a printout of defendant’s record. The printout showed that defendant was convicted on 21 January 1986 of assault with a deadly weapon, a knife, in violation of N.C. Gen. Stat. § 14-33. N.C. Gen. Stat. § 14-33(b)(l) (Cum. Supp. 1992) defines that offense as a misdemeanor punishable by imprisonment for not more than two years. The printout also revealed that defendant was convicted on 24 August 1982 of assault on a female, in violation of N.C. Gen. Stat. § 14-33(b)(2). A conviction under that section also subjects the defendant to imprisonment for not more than two years. As the majority points out, the defendant admitted the 1982 conviction, which, as a matter of law, satisfies the “more than 60 days’ confinement” requirement of N.C. Gen. Stat. § 15A-1340.4(l)o. (Cum. Supp. 1992).

I also observe that the defendant made no objection when the State offered and argued the prior convictions at the sentencing hearing. The State’s attorney stated: “The State, I believe, may have tendered a copy of the record. I believe it’s been recited in evidence for the court.” The State’s attorney then made specific reference to the assault with a deadly weapon and the assault on a female, as well as a trespass conviction. Defendant should not now be permitted to argue that it is unclear whether the assault was simple or aggravated. See State v. Quick, 106 N.C. App. 548, 555-61, 418 S.E.2d 291, 296-99 (1992).

It would be a waste of our already overburdened judicial resources to remand this case for a resentencing hearing when all that would be produced is exactly the same information which was properly before the trial court two years ago.

I respectfully dissent.