State v. Mayes

ARNOLD, Judge.

Defendant contends that at the trial de novo in superior court his motion to quash the felony indictment, which arose out of the same conduct for which he received the misdemeanor conviction in district court, should have been allowed. He is correct.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed. 2d 628 (1974), it was held that the prosecutor could not “up the ante” and try a person for a felony in the de novo trial where the person was charged and convicted of a misdemeanor in district court. Blackledge, which arose in North Carolina, was decided on the theory of denial of due process. It controls in this case.

Justice Stewart, writing for the Court in Blackledge, emphasized that due process is not offended by the possibility of increased punishment upon retrial, but by the opportunities for “vindictiveness” on the part of the prosecutor. The prosecutor is the central figure in this situation, and not the judge or the jury. According to Justice Stewart’s rationale, a convicted misdemeanant is entitled to pursue his right to a de novo trial without apprehension that the prosecutor “will retaliate by substituting a more serious charge.” Supra at 28. It is this potential vindictiveness which offends defendant’s right to due process. The possibility of increased punishment at the de novo trial does not offend the right to due process. Colton v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed. 2d 584 (1972); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969); also see Ludwig v. Massachusetts, _ U.S. __ , 96 S.Ct. , 49 L.Ed. 2d 732 (filed 30 June 1976). There is no suggestion in this record that the District Attorney in fact acted vindictively in obtaining the felony indictment.

We are not convinced by the State’s argument that this case can be distinguished from Blackledge because the defendant was originally charged with a felony. It is immaterial whether defendant was originally charged with a felony, since he was tried and convicted in district court of a misdemeanor. In fact, the original warrant charged a violation of G.S. 14-33 (b) (3), a misdemeanor. The statute was referred to specifically, and the elements of that misdemeanor offense were listed on the warrant. The use of the word “feloniously” in the warrant was surplusage. State v. Higgins, 266 N.C. 589, 146 S.E. 2d 681 (1966); State v. Wesson, 16 N.C. App. 683, 193 S.E. 2d 425 (1972), cert. den. 282 N.C. 675, 194 S.E. 2d 155 (1973).

Judgment is vacated and the cause is remanded for de novo trial on the misdemeanor charge of violating G.S. 14-33 (b) (3).

Vacated and remanded.

Judges Morris and Clark concur.