Past court case gets defendant shorter jail time
By Jack Stephens
Published in News on February 3, 2006 1:47 PM
A 43-year-old man who had been sentenced this week to more than 12 years in prison got a reduced sentence a day later in Wayne County Superior Court.
Thanks to his court-appointed lawyer, the sentence was slashed to 120 days.
"I've never had one quite like that before," the lawyer, James Copeland, said.
James Oscar Gardner, who did not disclose a home address, had been convicted by a jury of felony larceny after a breaking and entering, but was found not guilty of breaking and entering.
Because Gardner has been convicted of three other felony offenses in the 1980s in Greene County, he was sentenced as a habitual criminal to a significantly longer term.
Gardner was sentenced to 150 to 189 months by Judge W. Allen Cobb of Wilmington and ordered to pay $1,140 in restitution and $747.50 to Copeland. Gardner then appealed the verdict to the N.C. Court of Appeals.
After the sentence was pronounced at the end of the two-day trial, Copeland argued that it was inconsistent with the evidence. He asked Cobb to set aside the verdict and find Gardner guilty only of misdemeanor larceny. Cobb denied the motion.
Copeland found a 20-year-old Wayne County case in which the result was the same -- guilty of larceny after a breaking and entering and not guilty of breaking and entering. Copeland said an appeals court had ruled that the most a defendant could be convicted of in that situation was misdemeanor larceny. A day later, he showed the case law to the judge.
Cobb agreed to set aside the verdict and reduced the sentence to 120 days. Gardner withdrew his appeal.
Coincidentally, Copeland said, Assistant District Attorney Claud Ferguson had prosecuted both cases.
"Neither one of us expected the jury's verdict," Copeland said.
Gardner was accused of breaking into the home of Edward Bagley on Magnolia Street on June 24, then stealing a video cassette recorder, a DVD player, nine books of stamps, five bottles of beer and a pair of shower shoes. The property was valued at $1,140.
"It was never proved that he had been inside the house," Copeland said.
Some property similar to what was taken was recovered from Gardner.
The state later dismissed a charge of possession of stolen goods against Gardner.
Gardner had been living elsewhere until about two weeks ago. He had been on parole after another conviction, Copeland said, but the parole was revoked, and he was jailed.
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