Several criminal statutes include the provision that a person who commits the offense prescribed is guilty of a designated class of offense “unless the conduct is covered under some other provision of law providing greater punishment.” E.g., G.S. 14-33(c). Two recent cases illustrate the application of such provisions. In State v. French, No. COA24-704 (N.C. Ct. App. July 2, 2025), the Court of Appeals upheld three consecutive sentences for greater and lesser assaults, despite the inclusion in the relevant statutes of a some-other-provision-of-law clause. By contrast, in State v. Jenkins, No. COA24-889 (N.C. Ct. App. Aug 6, 2025), the Court of Appeals reversed an additional sentence for discharging a firearm within an enclosure because G.S. 14-34.10 contains a some-other-provision-of-law clause. This post examines the intent and scope of the SOPL clause.
Judicial Construction
Some courts have construed the SOPL clause as precluding multiple punishment for the same conduct as though on double jeopardy grounds. The seminal case is State v. Ezell, 159 N.C. App. 103, 111 (2003). In that case, the defendant was convicted of both assault with a deadly weapon with intent to kill inflicting serious injury (ADWIKISI) and assault inflicting serious bodily injury. Assault inflicting serious bodily injury is a Class F felony “[u]nless the conduct is covered under some other provision of law providing greater punishment.” G.S. 14-32.4(a). Apparently recognizing that these offenses are not the same in law (generally required for double jeopardy), the Court of Appeals declared it was not bound to end its inquiry with an analysis of the elements. Id. at 109. Treating double jeopardy as equivalent to legislative intent, the Court of Appeals concluded that, as the defendant’s conduct was covered under some other provision of law providing greater punishment, he could not be sentenced for both ADWIKISI and assault inflicting serious bodily injury based on the same conduct “without violating [constitutional] double jeopardy provisions.” Id. at 111; see also State v. Baldwin, 240 N.C. App. 413, 427 (2015) (same); State v. Coakley, 238 N.C. App. 480, 492 (2014) (ADWISI and assault inflicting serious bodily injury); State v. McCoy, 174 N.C. App. 105, 117 (2005) (same); State v. Williams, 201 N.C. App. 161, 174 (2009) (assault inflicting serious bodily injury and assault by strangulation).
Perhaps recognizing the potential reach of this extension of double jeopardy protections, the Court of Appeals later sought to cabin Ezell to offenses of the same kind. The defendant in State v. Hines, 166 N.C. App. 202 (2004), committed armed robbery and aggravated assault on a handicapped person. Aggravated assault on a person with a disability is a Class F felony “[u]nless the conduct is covered under some other provision of law providing greater punishment.” G.S. 14-32.1(e). Given this provision, the defendant in Hines argued he could not be sentenced for both the assault and robbery. He acknowledged that the offenses are not the same in law but argued that the SOPL clause as construed by Ezell is not so limited. The Court of Appeals balked. It distinguished Ezell, noting that the defendant in that case was sentenced under “two assault provisions” (overlooking the fact that robbery includes an assault). Hines, 166 N.C. App. at 209. It concluded that the SOPL clause bars punishment for multiple assaults, but not for different offenses of a different kind. Id.; cf. State v. Artis, 174 N.C. App. 668, 676 (2005) (rejecting double jeopardy challenge to sentences for assault on government employee and malicious conduct by a prisoner).
The Court of Appeals found another limitation to the protection afforded by the SOPL clause in offenses that are not the same in fact. The defendant in State v. Lanford, 225 N.C. App. 189 (2013), was convicted and sentenced for both assault by strangulation and ADWISI. Assault by strangulation is a Class H felony “[u]nless the conduct is covered under some other provision of law providing greater punishment.” G.S. 14-32.4(b). The defendant in Lanford argued he could not be convicted of both. The Court of Appeals disagreed. The SOPL clause, it said, precludes multiple punishment for the same conduct. Lanford, 225 N.C. App. at 197. When, however, “a defendant is convicted of a lesser crime for one assault and a greater crime for another,” it said, “this language does not preclude punishment for each separate assault.” Id. Given sufficient evidence of separate assaults with distinct interruptions, the SOPL clause simply does not apply. Id. at 198; see also State v. Tucker, 291 N.C. App. 379, 390 (2023); State v. Harding, 258 N.C. App. 306, 318 (2018).
Double jeopardy aside, the North Carolina Supreme Court has held that a SOPL clause precludes multiple punishment as a matter of legislative intent. Based on a vehicle collision that killed two people and injured a third, the defendant in State v. Davis, 364 N.C. 297 (2010), was convicted and sentenced for two counts each of second-degree murder and felony death by vehicle and one count each of ADWISI and felony serious injury by vehicle. Felony death / serious injury by vehicle was a Class E / Class F felony “[u]nless the conduct is covered under some other provision of law providing greater punishment.” G.S. 20-141.4(b) (2009). Our Supreme Court noted the Court of Appeals’ precedent in Ezell, but it reframed the holding as one of statutory interpretation. Davis, 364 N.C. at 304-05. It concluded that the General Assembly did not authorize punishment for offenses under G.S. 20-141.4 (death / serious injury by vehicle) when the same conduct is punished as a higher class offense, such as second-degree murder and ADWISI. Id. at 305; see also State v. Fields, 374 N.C. 629, 637 (2020) (habitual misdemeanor assault and assault inflicting serious bodily injury); State v. Robinson, 275 N.C. App. 330, 338 (2020) (assault inflicting serious bodily injury, assault on a female, assault by strangulation), aff’d as modified, 381 N.C. 207 (2022); State v. McPhaul, 256 N.C. App. 303, 318 (2017) (ADWIKISI and assault inflicting serious bodily injury); State v. Jones, 237 N.C. App. 526, 533 (2014) (habitual misdemeanor assault and assault on a female); State v. Jamison, 234 N.C. App. 231, 239 (2014) (assault on a female and assault inflicting serious bodily injury).
State v. French & State v. Jenkins
The defendant in State v. French, No. COA24-704 (N.C. Ct. App. July 2, 2025), was convicted and sentenced for assault by strangulation, assault on a female, and assault inflicting serious injury. Before the Court of Appeals, he argued that the evidence was insufficient to show three separate assaults. French, Slip Op. 4. The Court of Appeals concluded, however, that the evidence showed distinct interruptions delineating three separate assaults. Id. at 9. The defendant also argued he was subjected to cumulative punishment in violation of the SOPL clauses in G.S. 14-32.4 and 14-33(c). Id. But since the evidence showed three separate assaults (i.e., offenses not the same in fact), the Court of Appeals concluded the trial court did not err by imposing multiple sentences. Id. at 13.
The defendant in State v. Jenkins, No. COA24-889 (N.C. Ct. App. Aug. 6, 2025), was convicted and sentenced for attempted murder, AWDWIKISI, discharging a firearm into occupied property, and discharging a firearm within an enclosure. Any person who discharges a firearm within an enclosure to incite fear is punished a Class F felon “[u]nless covered under some other provision of law providing greater punishment.” G.S. 14-34.10. The defendant in Jenkins argued the trial court erred by imposing punishment under G.S. 14-34.10 in violation of the SOPL clause. Jenkins, Slip Op. 21. The Court of Appeals agreed. Relying on Davis, the Court of Appeals concluded the trial court erred by imposing a sentence for discharging a weapon within an enclosure. Id. at 25.
Conclusion
Taken together, French and Jenkins are consistent with the caselaw summarized above. Under the plain language of a SOPL clause, multiple punishment is barred when the conduct is covered by some other provision of law providing greater punishment. Jenkins represents a straightforward application of this language. Although the language of the SOPL clause in G.S. 14-34.10 varies somewhat from the usual pattern (“unless covered” as opposed to “unless the conduct is covered”), the Court of Appeals there held that a defendant could not be sentenced for discharge of a firearm within an enclosure when the same conduct was covered under some other provision of law providing greater punishment. It was immaterial that the offenses were not the same for purposes of double jeopardy. After Davis refined the analysis, the issue is purely one of legislative intent.
French by contrast represents application of a limitation on the SOPL clause. As the Court of Appeals previously recognized in Lanford, the SOPL clause applies to multiple charges arising from the same conduct, not to separate offenses divided by distinct interruptions in time and space. When the offense conduct was not the same – that is, when the offenses charged are not the same in fact – the SOPL clause (like the Double Jeopardy Clause) does not preclude cumulative punishment. In that regard, the analysis under a SOPL clause will generally track the analysis of the unit of prosecution, as it does in French. Conduct that will support conviction of multiple counts of the same offense will likewise support multiple sentences for the same reason.
One issue that remains unresolved is the viability of the limitation recognized by the Court of Appeals in Hines, which declined to apply the SOPL clause to an offense of a different nature. To be sure, our Supreme Court in Davis cited Hines, describing it as holding that separate sentences “were permissible as punishing distinct conduct – an assault and a robbery,” without reconciling it with the result in Davis, which barred separate sentences for distinct conduct – a murder and a felony death by vehicle. Davis, 364 N.C. at 305. After Davis, the Court of Appeals has, at least once, rejected the State’s attempt to rely on Hines, particularly where the defendant’s convictions albeit for distinct offenses were based on the same conduct. See State v. Jones, 237 N.C. App. 526, 531 (2014).