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North Carolina v. Cherry

Filed: February 2, 1982.

STATE OF NORTH CAROLINA
v.
DIANE WILHELMINA CHERRY



Appeal by defendant from Brown, Judge. Judgment entered 4 March 1981 in Superior Court, Pitt County. Heard in the Court of Appeals 7 January 1982.

Becton, Judge. Judge Clark and Judge Whichard concur.

Becton

I

Defendant first argues that the trial court should have allowed her motion to dismiss the bill of indictment. Defendant was originally charged in a Magistrate's Order with feloniously possessing with intent to sell and deliver four grams, but less than fourteen grams, of heroin. Defendant was subsequently indicted for feloniously trafficking in heroin by possessing and transporting 4.6 grams of heroin in violation of G.S. 90-95(h)(4).

The "trafficking" offense carries a greater punishment than the offense with which defendant had been originally charged. Defendant contends that the effective date of G.S. 90-95(h)(4) was 1 March 1981, and that, since she is alleged to have committed the crime charged on 3 October 1980, G.S. 90-95(h)(4) "was ex post facto as to her because it expose[d] her to greater punishment and its effective date had not come into being on the date that the crime is alleged to have been committed."

We do not agree. Defendant has misread the applicable statute. As of 3 October 1980, G.S. 90-95(h)(4) provided in pertinent part that

[a]ny person who sells . . . transports or possesses four grams or more of . . . heroin . . . shall be guilty of a felony which felony shall be known as "trafficking in opium or heroin" and if a quantity . . . involved:

(a) is four grams or more, but less than 14 grams, such person shall, upon conviction, be punished . . . for not less than six years nor more than fifteen years . . . and shall be fined not less than fifty thousand dollars ($50,000.00).

As of the date of defendant's conviction, 4 March 1981, G.S. 90-95(h)(4) had been amended so that the maximum punishment was a minimum sentence of fourteen years. However, the amendment was applicable only to acts committed on or after 15 April 1981. See G.S. 90-95(h)(4), Editor's notes. Therefore, defendant was not the victim of any ex post facto law or punishment. We also hold that there was no error in superseding the original warrant with the bill of indictment. "The actions of the grand jury are not limited by the charges presented or determined at a probable cause hearing in the district court." State v. McGee, 47 N.C. App. 280, 283, 267 S.E.2d 67, 70, disc. review denied 301 N.C. 101, 273 S.E.2d 306 (1980).

II

Defendant next contends that the trial court erred in denying her motion for a mistrial made when Officer C. E. Weatherington testified, over objection, that the green vegetable material in the cigarettes which the defendant handed to him ...


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