STATE v. THOMPSON

No. 8213SC1140.

303 S.E.2d 85 (1983)

STATE of North Carolina v. Perry Brown THOMPSON.

Court of Appeals of North Carolina.

June 7, 1983.


Attorney(s) appearing for the Case

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

Jerry A. Jolly, Tabor City, for defendant-appellant.


BECTON, Judge.

Defendant's sole assignment of error relates to his sentencing hearing. He argues that the trial court erred when it found that the offense of felonious uttering was committed for pecuniary gain and, thereby, improperly found that the factors in aggravation outweighed the factors in mitigation of defendant's sentence. We agree.

The issue raised by defendant's argument is whether pecuniary gain is inherent in the offense of felonious uttering. That offense comprises three essential elements: (1) the offer of a forged check or other instrument to another; (2) with knowledge that the instrument is false; and (3) with the intent to defraud or injure another. N.C.Gen.Stat. § 14-120 (1981). See also, State v. Hill, 31 N.C. App. 248, 229 S.E.2d 810 (1976).

First, as we said in State v. Morris, 59 N.C. App. 157, 296 S.E.2d 309 (1982), "if the pecuniary gain at issue in a case is inherent in the offense, then that `pecuniary gain' should not be considered an aggravating factor." Id., at 161-62, 296 S.E.2d at 313.

Additionally, the General Assembly recently amended the Fair Sentencing Act, N.C.Gen.Stat. § 15A-1340.4(a)(1)(c) (1981), to more clearly define pecuniary gain. Effective 1 October 1983, that factor will read: "The defendant was hired or paid to commit the offense." That amendment, in our view, clearly evinces the Legislature's intent to avoid the enhancement of a defendant's sentence simply because money or other valuable items were involved in the crime charged. Bound as we are fairly to interpret legislative enactments, and charged both to divine and carry out the intent of the Legislature, we are compelled to hold that the trial court erred in considering pecuniary gain as a factor in aggravation of defendant's sentence.

We note that it is difficult to imagine an uttering case in which a defendant utters or passes a fraudulent instrument for gain other than pecuniary; indeed, except for the aggrandizement of one's financial resources, uttering a defective instrument is pointless. We therefore determine that, unless a defendant is hired or paid for the commission of the offense, any other pecuniary gain is inherent in the offense of uttering a fraudulent instrument.

Because one of the findings in aggravation of defendant's sentence was improperly entered, and a sentence in excess of the presumptive imposed, this case is remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Remanded for resentencing.

WELLS and EAGLES, JJ., concur.


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