State v. Graham, 29 N.C. App. 234 (1976)

April 21, 1976 · North Carolina Court of Appeals · No. 763SC28

29 N.C. App. 234

STATE OF NORTH CAROLINA v. JESSIE GRAHAM, RONALD L. ROBERTS

No. 763SC28

(Filed 21 April 1976)

Criminal Law § 26; Robbery § 5— armed robbery — assault with deadly weapon — one act — double jeopardy

A defendant, having been convicted of armed robbery, cannot be convicted of the lesser offense of assault with a deadly weapon where both offenses arise out of the same act.

Appeal by defendants from Lanier, Judge. Judgments entered 28 August 1975 in Superior Court, Craven County. Heard in the Court of Appeals 16 April 1976.

Attorney General Edmisten, by Associate Attorney Noel Lee Allen, for the State.

Lee, Hancock & Lasitter, by Moses Dow Lasitter, for defendant appellant, Jessie Graham.

Robert G. Bowers, for defendant appellant, Ronald L. Roberts.

VAUGHN, Judge.

We have considered all of the assignments of error brought forward and, except as hereinafter stated, find them to be without merit.

Each defendant was convicted of armed robbery and assault with a deadly weapon. All offenses arose out of the same occurrence. A defendant, having been convicted of armed robbery, cannot be convicted of the lesser offense of assault with a deadly weapon where both offenses arise out of the same act. We must, therefore, arrest judgment in the assault with a deadly weapon cases.

As to each defendant, the judge consolidated the cases for judgment and ordered the imposition of a single sentence. It is necessary, therefore, to remand the cases for entry of a proper judgment against each defendant on the armed robbery conviction.

Nos. 75CR4999 and 75CR4960 (the armed robbery cases) are remanded for resentencing.

In Nos. 75CR4998 and 75CR4959 (the assault with a deadly weapon cases) the judgments are arrested.

Judges Britt and Arnold concur.