State v. Carroll 8 N.C. App. 336

STATE OF NORTH CAROLINA v. JAMES WILSON CARROLL

No. 7010SC249

(Filed 27 May 1970)

Criminal Law §§ 151, 155.5— failure to comply with statutes and court rules — dismissal of appeal

Appeal is dismissed for failure to comply with the North Carolina Statutes and the Rules of Practice in the Court of Appeals where the record does not show any notice of appeal given in open court or within 10 days from the rendition of the judgment, and the record on appeal was filed after the time for perfecting the appeal had expired and after the Court of Appeals had denied defendant’s petition for a writ of certiorari.

PURPORTED appeal from Godwin, S.J., 13 October 1969 Criminal Session, Waice Superior Court.

The record in this case discloses that the defendant was charged in a warrant with driving a motor vehicle on the public highways while under the influence of an intoxicating liquor and with a second charge of illegal transportation of tax-paid whiskey. The defendant, through his personally-employed attorney, tendered a plea of guilty to each offense.

“The Superior Court Judge adjudged that the two charges be consolidated for judgment and that the defendant be imprisoned for a term of 90 days in the Wake County jail. The execution of the sentence was suspended upon compliance of the following condition, to wit, that the defendant pay a fine of $200 and the costs.

The defendant complied with the judgment of the Superior Court by paying the fine and costs on October 14, 1969. The defendant also surrendered his driver’s license to the Clerk of the Superior Court on October 14, 1969.”

The record does not show any notice of appeal given either in open court or within 10 days from the rendition of the judgment.

On 14 January 1970, the time for perfecting an appeal having expired, the defendant filed a petition for a writ of certiorari to review the judgment of Superior Court. This petition was denied by this Court in conference on 4 February 1970. The defendant, nevertheless, caused statement of case on appeal to be served upon the Solicitor of Wake County on 27 February 1970, and filed the case on appeal in this court on 5 March 1970.

*337 Attorney General Robert Morgan, Assistant Attorney General William W. Melvin, Staff Attorney T. Buie Costen for the State.

William T. McCuiston for defendant appellant.