Reversing the Court of Appeals, the NC Supreme Court recently held, in State v. Floyd, that attempted assault is a crime in North Carolina. At issue in Floyd was whether the defendant’s prior conviction for attempted assault with a deadly weapon inflicting serious injury could support a later charge of possession of a firearm by a felon and habitual felon status. At trial the defendant moved to dismiss, arguing that because attempted assault was not a recognized crime under North Carolina law, his prior conviction couldn’t support the new charge or habitual felon status. The trial court denied both motions and the defendant was convicted and sentenced as a habitual felon. The Court of Appeals reversed, concluding that attempted assault is not a crime in North Carolina. That court noted that assault is an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to another person. As a result, an attempted assault verdict finds the defendant guilty of an “attempt to attempt.” Since one cannot be convicted of an attempt to commit a crime that itself is an attempt, the Court of Appeals held that attempted assault is not a recognized criminal offense in North Carolina. The State appealed and the Supreme Court reversed. The Floyd court noted that North Carolina law recognizes two forms of assault. First—and as recognized by the Court of Appeals—assault may be defined as an overt act or attempt, or the unequivocal appearance of [...]
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