dissenting.
I concur in the majority’s resolution that there was no error in defendant’s trial. However, believing that it is improper to increase a defendant’s sentence upon findings that (a) “defendant had a prior conviction for an offense punishable by more than 60 days” and (b) that defendant “was under a suspended sentence for the [same] prior felony conviction,” ante p. 3, I dissent. The sentence one receives, whether active or suspended, is the same as, or at least subsumed within, one’s only prior conviction. See State v. Isom, 65 N.C. App. 223 (1983).
Considering the fact that the legislature sought to deal with “pretrial” transgressions of the law by specifically including as a statutory aggravating factor that “[t]he defendant committed the offense while on pretrial release on another felony charge,” N.C. Gen. Stat. § 15A-1340.4(a)(l)(k) (Supp. 1981), I find it significant that the legislature made no reference to the commission of an of*575fense by a defendant serving a suspended sentence. I am convinced that the legislature sought to deal with post-conviction transgressions of the law in one way — by allowing judges to consider a prior conviction for an offense punishable by more than sixty days’ confinement. N.C. Gen. Stat. § 15A-1340.4(a)(l)(o) (Supp. 1981). Mindful of the possibility that a defendant’s sentence might be twice enhanced because of one fact, circumstance or transaction, the legislature specifically said that “prior convictions do not include any crime that is joinable, under G.S. Chapter 15A, with the crime or crimes for which the defendant is currently being sentenced.” Id. Similarly, the last paragraph of the statute listing aggravating factors states the “[ejvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation.” N.C. Gen. Stat. § 15A-1340.4(a)(l) (Supp. 1981).
More fundamentally, the trial court’s “double-clutch” action in this case frustrates one of the underlying purposes in enacting the Fair Sentencing Act — to equalize sentences. And the trial judge’s action in this case is only one of the ways trial judges are “doubling up” on defendants who have prior convictions. In State v. Isom, the trial judge found as separate aggravating factors that defendant had a prior conviction and that the defendant had served a prior prison term. Allowing trial judges, once they find that a defendant has a prior conviction, to further increase a defendant’s sentence in every case, by finding, depending on the facts, that the defendant received a suspended sentence or active sentence, is not what the Fair Sentencing Act is about. Consequently, I would remand this matter for a new sentencing hearing.