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STATE v. CANADY

No. 278A90.

410 S.E.2d 875 (1991)

330 N.C. 398

STATE of North Carolina v. Ricky Lynn CANADY.

Supreme Court of North Carolina.

December 6, 1991.

Attorney(s) appearing for the Case

Lacy H. Thornburg, Atty. Gen. by J. Charles Waldrup, Asst. Atty. Gen., for State.

Arnold Locklear, Pembroke, for defendant-appellant.

WEBB, Justice.

The defendant argues, under his only assignment of error, that it was error for the court to rely on the statement of the prosecuting attorney in finding the aggravating factor. We believe this argument has merit.

"Under the Fair Sentencing Act, a trial court may not find an aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists." State v. Swimm, 316 N.C. 24, 32,

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