dissenting in part.
I respectfully dissent from the majority opinion’s conclusion that defendant’s case was not “final” thereby resulting in the trial court committing error by imposing the firearm enhancement penalty on defendant’s re-sentencing for second-degree kidnapping.
As stated in the majority opinion, “[i]f a judgment is invalid as a matter of law, North Carolina Courts have the authority to vacate the invalid sentence and resentence the defendant accordingly....” State v. Branch, 134 N.C. App. 637, 641, 518 S.E.2d 213, 216 (1999). Here, I agree with the majority’s conclusion that defendant’s separate sentence for the firearm enhancement was invalid and should be vacated based on the court’s misapplication of N.C. Gen. Stat. § 15A-1340.16A. However, our case law indicates that the kidnapping sentence was still valid and only had to be modified due to the court’s mistake of law.
At least two North Carolina cases have upheld changes made to a defendant’s sentence without invalidating that sentence when a trial court has mistakenly applied the requisite law. In State v. LeSane, 137 N.C. App. 234, 528 S.E.2d 37 (2000), a trial court originally sentenced the defendant to life imprisonment based on its mistake as to when an amendment to the relevant statute (requiring life imprisonment without parole) would go into effect. After the defendant was sentenced, the court learned of the mistake and appropriately re-sentenced the defendant. This Court held that the re-sentence was not invalidated by the court’s mistake of law because it resulted in no prejudice to the -defendant. Id. at 245, 528 S.E.2d at 44. Also, in State v. Brown, 59 N.C. App. 411, 417, 296 S.E.2d 839, 843 (1982), this Court held that a “trial court acted properly in changing [a] defendant’s sentence after discovering it had mistakenly applied the wrong parole law when originally sentencing defendant.”
I find these two cases to be analogous to the case sub judice. The trial court mistakenly sentenced defendant without properly applying the firearm .enhancement statute. This mistake of law resulted in defendant originally receiving two separate sentences; *134one for second-degree kidnapping and another for the firearm enhancement. Although the separate firearm enhancement sentence was invalid, the kidnapping sentence was valid and only required a change or modification to bring it in accordance with N.C. Gen. Stat. § 15A-1340.16A. Defendant was not prejudiced by this change because it did not result in him receiving a greater sentence than was originally given to him.
Accordingly, the trial court did not err in re-sentencing defendant for the second-degree kidnapping offense with a firearm enhancement because defendant’s case was final for purposes of the Lucas rule.