State v. Harper, COA23-206, ___ N.C. App. ___ (Nov. 7, 2023)

In this Pitt County case, defendant appealed his convictions, arguing double jeopardy as DWI is a lesser included offense of felony serious injury by vehicle. The Court of Appeals arrested judgment on the DWI conviction, but found no prejudicial error justifying remand for resentencing. 

Defendant was charged with DWI, felony hit and run, and felony serious injury by vehicle, for a collision in August of 2020. After defendant was convicted of the charges and attained habitual felon status, the trial court consolidated the DWI and felony hit and run convictions, imposing a sentence of 89 to 119 months. The trial court also imposed a 101-to-134-month sentence for the felony serious injury by vehicle conviction and ordered the sentences to run concurrently. 

The court first established that “[a]s the State correctly noted at trial, DWI is a lesser included offense of felony serious injury by vehicle.” Slip Op. at 7. However, because the sentences were consolidated in separate judgments and ordered to run concurrently, defendant was not forced to serve additional time for the DWI conviction. Normally, the court would arrest judgment and remand for resentencing when it is unable to determine what weight the trial court gave to the arrested conviction. Here, because defendant’s sentences were separated, and he received a longer sentence in the presumptive range for the felony serious injury by vehicle conviction, the arrested judgment would not impact the ultimate length of his sentence.