Smith's Criminal Case Compendium
Table of Contents
State v. Brice, 370 N.C. 244 (Nov. 3, 2017)
On discretionary review from unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), concluding that the habitual misdemeanor larceny indictment was defective, the court reversed. The Court of Appeals concluded that the indictment was defective because it failed to comply with G.S. 15A-928, a defect that was jurisdictional. The indictment alleged that the defendant stole the property after having been previously convicted of misdemeanor larceny on four separate occasions. The court began by holding that the indictment alleged all of the essential elements of habitual misdemeanor larceny. However, it failed to comply with G.S. 15A-928, which provides that when the fact that the defendant has been previously convicted of an offense raises the present offense to a higher grade and thereby becomes an element, the indictment must be accompanied by a special indictment charging the prior convictions or these allegations must be included as a separate count. Thus, the issue before the court was whether the fact that the indictment failed to comply with the separate indictment or separate account requirements set out in G.S. 15A-928 constituted a fatal defect depriving the trial court of jurisdiction. The court concluded that noncompliance with the statute was not a jurisdictional issue and thus could not be raised on appeal where, as here, the defendant raised no objection or otherwise sought relief on the issue before the trial court. The court overruled State v. Williams, 153 N.C. App. 192 (2002), which the Court of Appeals had relied on to conclude that a violation of G.S. 15A-928 was jurisdictional.