104.8Double Jeopardy

Multiple Punishment

The Double Jeopardy Clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); State v. Sparks, 362 N.C. 181, 186 (2008). For purposes of cumulative punishment, it is necessary to distinguish between single-prosecution and successive-prosecution situations. See State v. Gardner, 315 N.C. 444, 451 (1986).

Single Proceeding

Legislative Intent

In the single proceeding context, the protection against cumulative punishments is designed to ensure the courts’ sentencing discretion is confined to the limits established by the legislature; hence, the question whether punishments are multiple is essentially one of legislative intent. Ohio v. Johnson, 467 U.S. 493, 499 (1984); State v. Banks, 367 N.C. 652, 655 (2014). There is generally no bar to sentencing a defendant for multiple offenses if each requires proof of a fact that the others do not. State v. Etheridge, 319 N.C. 34, 50 (1987). Hence, a defendant may be sentenced for both:

• Second-degree rape and statutory rape, State v. Banks, 367 N.C. 652, 659 (2014).

• Attempted murder and felony assault, State v. Tirado, 358 N.C. 551, 579 (2004).

• Insurance fraud and false pretenses, State v. Ray, 274 N.C. App. 240, 245 (2020).

• Obstruction of justice and accessory after the fact to murder, State v. Cousin, 233 N.C. App. 523, 537 (2014).

By contrast, a defendant generally may not be sentenced for both a greater and a lesser-included offense. See State v. Hernandez, 293 N.C. App. 283, 302 (2024) (first-degree kidnapping and underlying sexual offense); State v. Harper, 291 N.C. App. 246, 251 (2023) (impaired driving and felony serious injury by vehicle); State v. Mulder, 233 N.C. App. 82, 94 (2014) (felony fleeing to elude and underlying speeding). This is the familiar Blockburger test described above.

In this context, however, the Blockburger test is merely a rule of statutory construction. Missouri v. Hunter, 459 U.S. 359, 366 (1983); State v. Gardner, 315 N.C. 444, 455 (1986). “Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” Whalen v. United States, 445 U.S. 684, 692 (1980); accord State v. Baldwin, 240 N.C. App. 413, 424 (2015). When such a contrary legislative intent appears, a defendant may receive cumulative punishments for the same offense without violating double jeopardy protections. State v. Fernandez, 346 N.C. 1, 19 (1997); State v. Elliott, 344 N.C. 242, 277 (1996). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983); accord State v. Gardner, 315 N.C. 444, 453 (1986).

Kidnapping

Some North Carolina cases cite double jeopardy in support of the rule that kidnapping requires evidence of restraint beyond that inherent in another felony to warrant a conviction for both. E.g., State v. Fulcher, 294 N.C. 503, 523 (1978); State v. Andrews, 294 N.C. App. 590, 593 (2024). The rule is better explained as based on legislative intent in defining the offense of kidnapping. See State v. Beatty, 347 N.C. 555, 558 (1998).

Arrest of Judgment

When a defendant is convicted of several offenses and cumulative punishment is not authorized, a court may arrest judgment on some of the convictions. See State v. China, 370 N.C. 627, 637 (2018); State v. Hernandez, 293 N.C. App. 283, 302 (2024). In that case, the guilty verdicts remain on the docket and judgment may be entered if the other conviction is later reversed on appeal. State v. Pakulski, 326 N.C. 434, 439-40 (1990).

Successive Proceedings

Credit

As noted above, a defendant who succeeds in having a conviction overturned may be retried. If the defendant is convicted upon retrial, however, the protection against multiple punishment requires that credit be given for any sentence already served. North Carolina v. Pearce, 395 U.S. 711, 719-20 (1969); State v. Jones, 294 N.C. 642, 655 (1978).

Sentence Enhancement

A sentence enhancement based on prior convictions is not viewed as an additional penalty for prior conduct but as a stiffened penalty for the latest crime. Monge v. California, 524 U.S. 721, 728 (1998); accord State v. Marshburn, 173 N.C. App. 749, 752 (2005). Hence, the prohibition on double jeopardy is not violated by:

• Sentencing a defendant as an habitual felon. State v. Todd, 313 N.C. 110, 117 (1985).

• Using the same prior felony conviction to support a conviction for possession of a firearm by a felony and habitual felon status. State v. Williams, 191 N.C. App. 96, 106 (2008).

• Sentencing a defendant for habitual impaired driving. State v. Bradley, 181 N.C. App. 557, 560 (2007).

• Sentencing a defendant for habitual misdemeanor assault. State v. Artis, 181 N.C. App. 601, 604 (2007).

Civil Penalties

In addition, a defendant may be subjected to civil penalties based on the same conduct that gave rise to criminal prosecution. The analysis of whether a penalty is properly deemed civil, and hence outside of double jeopardy protection, mirrors that applicable to civil sanctions imposed prior to criminal prosecution. The following penalties have been found not to constitute additional criminal punishment:

• Satellite-based monitoring; G.S. 14-208.40A; State v. Wagoner, 199 N.C. App. 321, 332 (2009), aff’d per curiam, 364 N.C. 422 (2010).

• Permanent no contact order for convicted sex offender; G.S. 15A-1340.50; State v. Hunt, 221 N.C. App. 48, 63 (2012).

• Civil commitment of sex offenders; Seling v. Young, 531 U.S. 250, 267 (2001); Kansas v. Hendricks, 521 U.S. 346, 369 (1997).

• Civil action of abatement and forfeiture of proceeds; G.S. 19-2.1; State v. Arellano, 165 N.C. App. 609, 616–17 (2004).

• Driver’s license revocation for willful refusal of chemical test; G.S. 20-16.2; Ferguson v. Killens, 129 N.C. App. 131, 140 (1998).

• In rem forfeiture of property. United States v. Ursery, 518 U.S. 346, 369 (1997).