State v. Mayes

ARNOLD, Judge.

Defendant contends that at the trial de novo in superior court his motion to quash the felony indictment, which arose out of the same conduct for which he received the misdemeanor conviction in district court, should have been allowed. He is correct.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed. 2d 628 (1974), it was held that the prosecutor could not “up the ante” and try a person for a felony in the de novo trial where the person was charged and convicted of a misdemeanor in district court. Blackledge, which arose in North Carolina, was decided on the theory of…