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State v. Poor8/16/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Dawn Sheryll Poor (defendant) was charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 and with misdemeanor hit and run in violation of N.C. Gen. Stat. § 20-166(b) on 27 May 2003. Defendant was indicted on 6 October 2003 for impaired driving and driving while her driver's license was revoked in file number 86013, and for misdemeanor hit and run in file number 86015. Defendant was also indicted on 6 October 2003, under N.C. Gen. Stat. § 20-138.5, for habitual impaired driving in file number 86014, on the grounds that defendant had been convicted of three offenses involving impaired driving within seven years of the 27 May 2003 offense. Defendant was tried before a jury on 23 February 2004.
At the close of the State's evidence, defendant moved to dismiss all charges. The indictment in file number 86013, which included the misdemeanor driving while impaired charge, was dismissed because the indictment was defective. The date of offense listed on the indictment was 24 September 2000, rather than 27 May 2003, and no evidence was presented that defendant was driving while impaired on 24 September 2000. The indictment in file number 86015 for the misdemeanor hit and run was also dismissed as being defective. This indictment stated that the hit and run had resulted in personal injury , but no evidence of personal injury was presented by the State, only evidence of property damage. This indictment also included an erroneous location of the offense.
Defendant argued that the habitual impaired driving charge in file number 86014 should also be dismissed because pursuing that charge, after the misdemeanor impaired driving charge in file number 86013 had been dismissed, would subject defendant to double jeopardy. However, the trial court denied defendant's motion to dismiss the habitual impaired driving charge.
Defendant presented evidence, and at the close of all the evidence, she renewed her motion to dismiss on the grounds of insufficiency of the indictment, double jeopardy, and sufficiency of the evidence. The trial court denied defendant's motion. The jury found defendant guilty of impaired driving. She was sentenced to nineteen to twenty-three months in prison for habitual driving while impaired. Defendant appeals.
Defendant listed five assignments of error in the record on appeal but argues only one assignment of error in her brief. The remaining assignments of error are deemed abandoned pursuant to Rule 28(b)(6) of the N.C. Rules of Appellate Procedure. Defendant's sole argument is that the trial court erred by denying defendant's motion to dismiss the charge of habitual driving while impaired on the grounds of double jeopardy. Defendant argues that she was twice put in jeopardy for the same offense when the State was allowed to proceed on two indictments: the misdemeanor driving while impaired charge in file number 86013 and the habitual impaired driving charge in file number 86014.
Defendant cites only the following to support her argument:
The Double Jeopardy Clause of the Fifth Amendment [of the United States Constitution], applicable to the States through the Fourteenth Amendment [of the United States Constitution], provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second pr
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