How to Fight a Habitual Felon Charge in NC

The status is not automatic, and it is not a new crime. The district attorney decides whether to charge it, and it needs its own indictment under G.S. 14-7.3.

That choice, and every prior felony on the list, is where a defense lawyer goes to work.

Facing a habitual felon indictment, or did a prosecutor mention one? Call (336) 379-0539 to talk with a felony defense lawyer in Greensboro before your next court date.

What can be done depends on the facts of your case.

Understanding Habitual Felon Charges in North Carolina

Habitual felon is a status, not a separate crime. The UNC School of Government says it plainly: “Being an habitual felon is not a crime but is a status.”

No sentence is imposed for the status itself. Instead, the status raises the class of the new felony you are convicted of.

Under G.S. 14-7.2, the status is charged together with a new felony that is charged by indictment. The higher sentence applies only after a conviction or guilty plea on that felony.

If the new charge ends as a misdemeanor, there is no felony for the status to raise.

The district attorney decides whether to seek the status at all. The School of Government also notes that a prosecutor may decide not to pursue it, even after an indictment.

What Makes Someone a Habitual Felon? The North Carolina Habitual Felon Statute

Three prior felony convictions or guilty pleas, from any state or federal court, make someone eligible for habitual felon status.

“Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon …” G.S. 14-7.1(a)

The order of events matters as much as the count. Your second felony counts only if you committed it after you were convicted of, or pleaded guilty to, the first.

Your third felony counts only if you committed it after the conviction or plea on the second. That order rule is in subsection (c) of the statute.

If felony 2 was committed before you were convicted of felony 1, it does not count as a separate step. Several felonies committed before your first conviction cannot fill more than one step.

The new felony must also be committed after the conviction or plea on the third.

Three earlier felonies, in order, plus a new felony charge, is what the State has to show.

Which Prior Felonies Count, and Which Do Not

Felonies from North Carolina, from other states and from federal court can all count toward habitual felon status. Not every old felony on a record can be used.

An out-of-state conviction counts only if it is substantially similar to a North Carolina felony. Where a state does not label crimes as felonies, the offense also must have been punishable by more than a year in prison.

A pardoned felony does not count, but you have to prove the pardon. Pleas or convictions entered before July 6, 1967, do not count either.

Federal felonies for liquor offenses are left out as well. And felonies committed before age 18 count as no more than one felony.

A habitual misdemeanor assault conviction cannot be used either, even though it is a felony, under G.S. 14-33.2. Nor can a habitual breaking and entering or armed habitual felon status conviction, under G.S. 14-7.31(c) and 14-7.41(c).

The statute sets no time limit on how old a prior felony can be. A conviction from decades ago can still count.

Habitual Felon Sentencing Chart: How Many Years in NC?

A habitual felon is sentenced four classes higher than the new felony, capped at Class C. The exception is a felony already sentenced as Class A, B1 or B2, which keeps its own class.

The four-class rule applies to felonies committed on or after December 1, 2011, as the School of Government’s summary of the 2011 change explains.

At Prior Record Level I, the lowest level, the chart in G.S. 15A-1340.17 gives these results.

New Felony Class	Sentenced As	Level I Disposition	Level I Presumptive Minimum
Class I	Class E	Intermediate or Active	20-25 Months
Class H	Class D	Active	51-64 Months
Class G	Class C	Active	58-73 Months
Class F, E, D or C	Class C (Cap)	Active	58-73 Months

The three felonies used to prove the status do not count toward your prior record level. Other prior convictions still do, and each higher level raises the range.

The habitual sentence also runs after any sentence you are already serving.

For example, an uttering a forged instrument charge, a Class I felony, is sentenced as Class E.

A common law robbery charge in NC is Class G, so it is sentenced as Class C. The same jump applies to possession of a firearm by a felon, a Class G felony under G.S. 14-415.1.

Class E at Levels I and II authorizes intermediate or active punishment. Class D and Class C authorize active punishment only, at every level.

In rare cases, a judge may find extraordinary mitigation and order intermediate punishment instead of active time. That option is closed with five or more prior record points, under G.S. 15A-1340.13(g), (h).

Your lawyer decides whether the facts support asking for it.

Where in the range you land is argued by your lawyer, not assumed.

Got a habitual felon indictment? The law gives you at least 20 days after the true bill before trial on the status.

Use that time, because every prior has to be pulled and checked. Call (336) 379-0539.

How a Habitual Felon Case Moves Through Court

The status is charged in its own indictment, separate from the indictment for the new felony, under G.S. 14-7.3. It helps to know how a grand jury indictment works, because the status needs its own.

That indictment must list each prior felony’s offense date, the state or sovereign, the date of the plea or conviction, and the court.

You cannot be required to go to trial on the habitual charge within 20 days after the grand jury returns a true bill. That waiting period protects you, and you can choose to waive it.

The trial runs in two stages under G.S. 14-7.5. The jury hears nothing about the habitual charge unless it first convicts you of the new felony.

If it does, a jury then decides whether you are a habitual felon. If the jury finds you are not, the judge sentences the new felony as usual.

The State proves each prior with a certified court record or a stipulation, under G.S. 14-7.4. A record in the same name is prima facie proof that it is you.

Defense Strategies to Beat a Habitual Felon Charge

You fight a habitual felon charge by testing each piece the State needs: the new felony, the priors, the indictment and the sentence. Every case is different, and what works depends on the facts of your case.

1Fight the New Felony First

Without a felony conviction, there is no habitual felon sentence. If the new charge is dismissed or reduced to a misdemeanor, the status has nothing to raise.

Your lawyer reviews the evidence on the new charge before anything else.

2Check Every Prior on the Indictment

Your lawyer compares the offense and conviction dates on each prior, because the order rule in subsection (c) is strict. That includes whether the new charge came after the third conviction.

Identity, pardons, the 1967 cut-off, federal liquor offenses and out-of-state similarity are checked too.

3Test the Indictment Itself

The habitual indictment must list specific details for every prior. Your lawyer checks it against what G.S. 14-7.3 requires.

4Negotiate With the Prosecutor

The district attorney has discretion to charge the status and to pursue it. So the status can be part of plea talks, but no one can promise it will be dropped.

5Prepare for Sentencing

If there is a conviction, the judge can find mitigating factors under G.S. 15A-1340.16(e). These include treatment started or completed after arrest and before trial, accepting responsibility, supporting your family and steady work.

Your lawyer gathers proof of each factor.

A defense lawyer pulls every prior record and checks it before any plea offer is weighed. Talk with our Greensboro criminal defense attorneys about the indictment and every prior on it.

Call (336) 379-0539 to reach our felony defense team in Greensboro.

Habitual Felon vs Other Habitual Laws in NC

North Carolina has several habitual laws, and each one works differently.

A violent habitual felon has two prior violent felonies, meaning Class A to E, under G.S. 14-7.7. A new violent felony conviction then brings life without parole and no probation under G.S. 14-7.12.

An armed habitual felon convicted of a firearm-related felony is sentenced as Class C, with a minimum of at least 120 months. Probation is not allowed under G.S. 14-7.41.

Habitual breaking and entering applies after one prior felony breaking and entering, under G.S. 14-7.26. The new offense is sentenced as Class E under G.S. 14-7.31.

Larceny after four prior larceny convictions is a Class H felony under G.S. 14-72(b)(6). Repeat theft is its own rule, so see how habitual larceny is charged.

Repeat impaired driving has its own rules, covered in habitual DWI charges in Greensboro.

Compare every habitual offender law in NC side by side.

Frequently Asked Questions

This article explains North Carolina law in general terms. It is not legal advice about your case, and laws, penalties and court procedures change. Contact an attorney about your specific situation.