State v. Soles

ARNOLD, Judge.

The trial court erred in sentencing defendant by considering as an aggravating factor a prior conviction for communicating threats where prayer for judgment was continued. When an accused is convicted with prayer for judgment continued, no judgment is entered. State v. Southern, 71 N.C. App. 563, 322 S.E. 2d 617 (1984), aff’d per curiam, 314 N.C. 110, 331 S.E. 2d 688 (1985). A conviction with prayer for judgment continued cannot support a finding of prior conviction as an aggravating factor. Id.

In the case sub judice, the trial court erred in finding that defendant was twice convicted of communicating threats since one of those convictions resulted in the direction of a prayer for judgment continued. Although the weight given to any particular aggravating factor is within the discretion of the trial judge, a case must be remanded for a new sentencing hearing if the trial judge errs in finding an aggravating factor and imposes a sentence beyond the presumptive term. State v. Aheam, 307 N.C. 584, 300 S.E. 2d 689 (1983). Accordingly, defendant is entitled to a new sentencing hearing.

Remanded for resentencing.

Judges Orr and Greene concur.