GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	2 

HOUSE BILL 222
Committee Substitute Favorable 4/23/97

Short Title:  Habit. Felon Determination.	(Public)

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Sponsors:

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Referred to:  

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February 17, 1997

A BILL TO BE ENTITLED
AN ACT TO RECODIFY THE LAW CONCERNING HABITUAL FELONS AND VIOLENT HABITUAL FELONS, TO PROVIDE THAT THE ISSUE OF WHETHER A DEFENDANT IS AN HABITUAL FELON OR A VIOLENT HABITUAL FELON SHALL BE DETERMINED BY THE TRIAL JUDGE, AND TO MAKE OTHER CHANGES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 14-7.1 is recodified as G.S. 15A-1340.13A; the remainder of Article 2A of Chapter 14 of the General Statutes is repealed.
Section 2.  G.S. 14-7.1, as recodified by Section 1 of this act, reads as rewritten: 
"§ 15A-1340.13A.  Habitual felons.
(a)	Definitions. – The following definitions shall apply in this section when determining a person's status as an habitual felon:
(1)	Felony. – An offense that is a felony under the laws of the State or other sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed. The term does not include, however, federal offenses relating to the manufacture, possession, sale of, and kindred offenses involving intoxicating liquors.  For the purposes of this section, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this section unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this section unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felonies before July 6, 1967, are not felonies for the purposes of this section.  A felony offense to which a pardon has been extended is not a felony for the purposes of this section.  The burden of proving the pardon shall rest with the defendant; the State is not required to disprove a pardon.
(2)	Habitual felon. – A person who has been convicted of or pled guilty to three or more felony offenses in any federal court or state court in the United States or combination thereof prior to committing the current offense.
(b)	Sentencing of Habitual Felons. – When a person is convicted of or pleads guilty to any felony under the laws of this State, the district attorney may, upon sentencing, submit to the trial judge, as an enhanced sentencing factor, the determination of the person's status as an habitual felon. If the trial judge determines, upon submission by the district attorney of the defendant's status as an habitual felon that the felony was committed by an habitual felon, the trial judge shall sentence the person as a Class C felon, except where the felon has been sentenced as a Class A, B1, or B2 felon. In determining the prior record level of the person sentenced as an habitual felon, the convictions used to establish the person's status as an habitual felon shall not be used. A sentence imposed on an habitual felon pursuant to this section shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.
(c)	Disclosure of Habitual Felon Status. – If the district attorney fails to serve written notice upon the defendant no later than 20 working days before trial of the defendant's status as an habitual felon and the district attorney's intention to submit to the trial judge the defendant's status as an habitual felon, the defendant may not be sentenced as an habitual felon under this section.
(d)	Evidence of Prior Convictions. – In sentencing a person under this section, the record or records of prior convictions of felony offenses may be used by the court to determine if the person has been convicted of former felony offenses. A prior conviction may be shown by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be sufficient to show that the defendant named therein is the same as the defendant before the court and to show the facts set out in the record, and the burden of any showing to the contrary shall be upon the defendant."
Section 3. G.S. 14-7.7 is recodified as G.S. 15A-1340.13B; the remainder of Article 2B of Chapter 14 of the General Statutes is repealed.
Section 4. G.S. 14-7.7, as recodified by Section 3 of this act, reads as rewritten:
"§ 15A-1340.13B.  Violent habitual felons.
	”	”			(a)	Definitions. – The following definitions shall apply in this section when determining a person's status as a violent habitual felon:
(1)	Violent felony. – An offense that is one of the following:
a.	All Class A through E felonies.
b.	Any repealed or superseded offense substantially equivalent to the offenses listed in sub-subdivision a.
c.	Any offense committed in another jurisdiction substantially equivalent to the offenses set forth in sub-subdivisions a. or b.
	A person is convicted of a violent felony if he or she has been adjudged guilty of or has entered a plea of guilty to a violent felony charge, and a judgment has been entered on or after July 6, 1967. This section does not apply to a second violent felony unless it is committed after the conviction or plea of guilty or no contest to the first violent felony. Any felony to which a pardon has been extended shall not, for the purposes of this section, constitute a violent felony. The burden of proving a pardon shall rest with the defendant, and the State shall not be required to disprove a pardon. Conviction and punishment as an habitual felon shall not, for the purposes of this section, constitute a violent felony.
(2)	Violent habitual felon. – Any person who has been convicted of two violent felonies in any federal court, in a court of this or any other state of the United States, or in a combination of these courts.
(b)	Sentencing of Violent Habitual Felons. – When a person is convicted of or pleads guilty to any violent felony under the laws of this State, the district attorney may, upon sentencing, submit to the trial judge, as an enhanced sentencing factor, the determination of the person's status as a violent habitual felon. If the trial judge determines, upon the submission by the district attorney of the person's status as a violent habitual felon that the violent felony was committed by a violent habitual felon, the trial judge shall sentence the person to life imprisonment without parole, except where the death penalty is imposed. Life imprisonment without parole means that the person will spend the remainder of the person's natural life in prison.  The sentencing judge may not suspend the sentence and may not place the person sentenced on probation.  Sentences for violent habitual felons imposed under this Article shall run consecutively with and shall commence at the expiration of any other sentence being served by the person.
(c)	Disclosure of Violent Habitual Felon Status. – If the district attorney fails to serve written notice upon the defendant no later than 20 working days before trial of the defendant's status as a violent habitual felon and the district attorney's intention to submit to the trial judge the defendant's status as a violent habitual felon, the defendant may not be sentenced as a violent habitual felon under this section.
(d)	Evidence of Prior Convictions. – In sentencing a person under this section, the records of prior convictions of violent felonies may be used by the court to determine if the person has been convicted of former violent felonies.  A prior conviction may be shown by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.  The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein, and the burden of any showing to the contrary shall be upon the defendant."
Section 5.  This act becomes effective December 1, 1997, and applies to offenses committed on or after that date.