State v. Leeper , 59 N.C. App. 199 ( 1982 )

MARTIN (Robert M.), Judge.

The question presented by this appeal is whether the court erred in ruling that the fourteen year term required by N.C. Gen. Stat. 14-87(d) (1981) could not be reduced by the mitigating factors recognized under the Fair Sentencing Act.

Prior to entry of judgment the trial court ruled that the minimum 14 year sentence was mandatory for all offenses of armed robbery committed on or after July 1, 1981 and that the minimum sentence could not be reduced by mitigating factors pursuant to the Fair Sentencing Act, N.C. Gen. Stat. 15A-1340.1 — 1340.7 (Supp. 1981). Defendant appealed under N.C. Gen. Stat. 15A-1444 (Supp. 1981). We affirm the judgment of the trial court.

N.C. Gen. Stat. 14-87(a) provides that persons who commit the crime of armed robbery “ . . . shall be guilty of a Class D felony.” Defendant contends that this language indicates a legislative intent to make the Fair Sentencing Act applicable to armed robbery. That Act provides that the presumptive term must be imposed unless, after consideration of aggravating or mitigating factors, or both, the sentencing judge decides to impose a shorter or longer term. N.C. Gen. Stat. 15A-1340.4(a). N.C. Gen. Stat. 15A-l340.4(f)(2) further provides that “[ujnless otherwise specified by statute,” Class D felonies carry a presumptive sentence of 12 years.

N.C. Gen. Stat. 14-87(d) provides that:

Notwithstanding any other provision of law, with the exception of persons sentenced as committed youthful offenders, a person convicted of robbery with firearms or other dangerous weapons shall serve a term of not less than seven years in prison, excluding gain time granted under G.S. 148-13. A person convicted of robbery with firearms or other dangerous weapons shall receive a sentence of at least lk years in the State’s prison and shall be entitled to credit for good behavior under G.S. 15A-1340.7. The sentencing judge may not suspend the sentence and may not place the person sentenced on probation. Sentences imposed pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder. (Emphasis added.)

The language of N.C. Gen. Stat. 14-87(d) is unambiguous and its effect is clear. Any person convicted of armed robbery must receive no less than a 14 year sentence, notwithstanding any other provision of law. Thus, there is no room for judicial construction on this point. In Re Banks, 295 N.C. 236, 244 S.E. 2d 386 (1978); State v. Camp, 286 N.C. 148, 209 S.E. 2d 754 (1974).

The following factors lead us to the conclusion that the General Assembly considered the relationship between N.C. Gen. Stat. 14-87 and the Fair Sentencing Act. First, N.C. Gen. Stat. 14-87 was rewritten as part of the Act. 1979 N.C. Sess. Laws, c. 760, s. 5. Second, the rewritten version specifically refers to N.C. Gen. Stat. 15A-1340.7, the section of the Fair Sentencing Act allowing credit for good behavior. Third, the General Assembly amended the last part of N.C. Gen. Stat. 14-87(a) in the 1979 second session changing the phrase “ . . . punished as a Class D felon” to “ . . . guilty of a Class D felony.” 1979 N.C. Sess. Laws, c. 1316, s. 12.

These factors lead to the conclusion that the General Assembly intended to impose a minimum sentence for armed robbery greater than the presumptive sentence for a Class D felony and also intended that the minimum be irreducible, except for credit for good behavior, “notwithstanding any other provision of law. . . N.C. Gen. Stat. 14-87(d).

Where one statute deals with a subject in detail with reference to a particular situation (in this case, armed robbery) and another statute deals with the same subject in general and comprehensive terms (felonies), the particular statute will be construed as controlling in the particular situation unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto. Food Store v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E. 2d 582 (1966). In this case the legislature clearly intended the provisions of N.C. Gen. Stat. 14-87(d) to control over the conflicting provisions of the Fair Sentencing Act.

The North Carolina Supreme Court has previously recognized that the General Assembly intended to provide more severe punishment for armed robbery offenses when it enacted N.C. Gen. Stat. 14-87. State v. Jones, 227 N.C. 402, 42 S.E. 2d 465 (1947). The statutory construction which we have set forth is in accordance with the legislature’s firm stand on the punishment of persons committing armed robbery. “It is not for us to say that the policy judgment of the General Assembly with respect to punishment for armed robbery is wrong. Armed robbery is a crime of violence and those who take the risk must assume the consequences involved.” State v. Legette, 292 N.C. 44, 58, 231 S.E. 2d 896, 904 (1977).

As the General Assembly has chosen to remove much of the discretionary power which judges previously exercised in the sentencing process we must hold that the 14 year sentence for armed robbery specified in N.C. Gen. Stat. 14-87(d) is a minimum which may not be reduced under the Fair Sentencing Act except by credit for good behavior.

Affirmed.

Judges Arnold and Whichard concur.