State v. Baldwin, 240 N.C. App. 413 (Apr. 7, 2015)

(1) Under State v. Tirado, 358 N.C. 551, 579 (2004) (trial court did not subject the defendants to double jeopardy by convicting them of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) arising from the same conduct), no violation of double jeopardy occurred when the trial court denied the defendant’s motion to require the State to elect between charges of attempted first-degree murder and AWDWIKISI. (2) Because the assault inflicting serious bodily injury statute begins with the language “Unless the conduct is covered under some other provision of law providing greater punishment,” the trial court erred by sentencing the defendant to this Class F felony when it also sentenced the defendant for AWDWIKISI, a Class C felony. [Author’s note: Although the court characterized this as a double jeopardy issue, it is best understood as one of legislative intent. Because each of the offenses requires proof of an element not required for the other the offenses are not the “same” for purposes of double jeopardy. Thus, double jeopardy is not implicated. However, even if offenses are not the “same offense,” legislative intent expressed in statutory provisions may bar multiple convictions, as it does here with the “unless covered” language. For a more complete discussion of double jeopardy, see the chapter in my judges’ Benchbook here]