Generally, North Carolina sentencing for criminal defendants depends on their prior criminal convictions. Additionally, North Carolina has a designation for what is considered to be a habitual felon. This status causes the defendant to be sentenced much more harshly than he or she would have otherwise been, based on the charged offense.
Habitual Felon Status
N.C.G.S. § 14-7.1 defines a habitual felon as any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court within the United States or combination thereof.
For the purposes of the habitual felon status, the state of North Carolina will not count more than one felony conviction that occurred when the defendant was under the age of 18.
To determine habitual felon status the number of court sessions is used to determine the number of felonies, rather than the number for felonies.
For example, if someone is convicted of 4 felonies in one case, the person is not automatically considered a habitual felon. That person would have to have been convicted of at least one felony in three sessions of superior court.
Being Charged as a Habitual Felon
Being indicted as a habitual felon is not mandatory, based on a person’s prior criminal record, rather this is at the discretion of the district attorney (prosecutor).
Upon indictment of an underlying felony, a separate indictment of habitual felon must occur in order for the State to try a case against a defendant as a habitual felon. This indictment must allege the previous felonies the defendant has been convicted of and the dates in which these convictions occurred.
Habitual Felon Trial Procedures:
Underlying Felony Trial Phase
In order for the Defendant to not be unfairly prejudiced by the jury, his or her status as a habitual felon, and the habitual felon charge, are not referred to during jury selection, or during the trial for the alleged felony or felonies he or she is being tried for at that time.
The habitual felon charge does not come into play until the Defendant is found not guilty. However, if he or she is found guilty of a felony at trial, a second, shorter trial begins to determine his or her status as a habitual felon.
Habitual Felon Trial Phase
If the defendant does not admit to his or her status as a habitual felon, the prosecutor must prove beyond a reasonable doubt that under North Carolina Statutes, he or she is in fact a habitual felon.
The evidence that must be presented if the defendant denies being a habitual felon include the record or records of prior convictions of felony offenses and the original or a certified copy of the court record of the prior conviction.
The original or certified copy of the court record, having the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant currently on trial is the same as the defendant before the court, and shall be prima facie evidence of the facts set out.
Habitual Felon Sentencing
The consequence of being designated and being convicted of being a habitual felon in North Carolina is that the defendant will be sentenced to a felony class level that is four classes higher than the underlying felony for which they were convicted. However, the defendant cannot be sentenced at a higher level than a class C felony.
Example: If someone is convicted of a felony larceny (which is a class H felony), he or she would be sentenced as someone who is convicted of a class D felony.
Which, in this example, would lead to many more years of active prison time than would otherwise have been mandated.
If you have been charged with habitual felon or have questions about habitual felon status, call us today at 980-272-8438.