§ 15A-928. Allegation and proof of previous convictions in superior court.
§15A‑928. Allegation and proof of previous convictions in superior court.
(a) When the fact thatthe defendant has been previously convicted of an offense raises an offense oflower grade to one of higher grade and thereby becomes an element of the latter,an indictment or information for the higher offense may not allege the previousconviction. If a reference to a previous conviction is contained in thestatutory name or title of the offense, the name or title may not be used inthe indictment or information, but an improvised name or title must be usedwhich labels and distinguishes the offense without reference to a previousconviction.
(b) An indictment orinformation for the offense must be accompanied by a special indictment orinformation, filed with the principal pleading, charging that the defendant waspreviously convicted of a specified offense. At the prosecutor's option, thespecial indictment or information may be incorporated in the principalindictment as a separate count. Except as provided in subsection (c) below, theState may not refer to the special indictment or information during the trialnor adduce any evidence concerning the previous conviction alleged therein.
(c) After commencementof the trial and before the close of the State's case, the judge in the absenceof the jury must arraign the defendant upon the special indictment orinformation, and must advise him that he may admit the previous convictionalleged, deny it, or remain silent. Depending upon the defendant's response, thetrial of the case must then proceed as follows:
(1) If the defendantadmits the previous conviction, that element of the offense charged in theindictment or information is established, no evidence in support thereof may beadduced by the State, and the judge must submit the case to the jury withoutreference thereto and as if the fact of such previous conviction were not anelement of the offense. The court may not submit to the jury any lesserincluded offense which is distinguished from the offense charged solely by thefact that a previous conviction is not an element thereof.
(2) If the defendantdenies the previous conviction or remains silent, the State may prove thatelement of the offense charged before the jury as a part of its case. Thissection applies only to proof of a prior conviction when it is an element ofthe crime charged, and does not prohibit the State from introducing proof ofprior convictions when otherwise permitted under the rules of evidence.
(d) When a misdemeanoris tried de novo in superior court in which the fact of a previous convictionis an element of the offense affecting punishment, the State must replace thepleading in the case with superseding statements of charges separately allegingthe substantive offense and the fact of any prior conviction, in accordancewith the provisions of this section relating to indictments and informations.Any jury trial in superior court on the misdemeanor must be held in accordancewith the provisions of subsections (b) and (c).
(e) Nothing containedin this section precludes the State from proving a prior conviction before agrand jury or relieves the State from the obligation or necessity of so doingin order to submit a legally sufficient case. (1973, c. 1286, s. 1; 1975,c. 166, s. 27.)