State Of North Carolina v. Miller
| Decision Date | 20 July 2010 |
| Docket Number | No. COA09-927.,COA09-927. |
| Citation | 696 S.E.2d 542 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolinav.Charles Thomas MILLER. |
Appeal by Defendant from order entered 5 March 2009 by Judge C. Phillip Ginn in Superior Court, Buncombe County. Heard in the Court of Appeals 23 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State.
Irving Joyner, Cary, for Defendant-Appellant.
Charles Thomas Miller (Defendant) was indicted on 1 December 2008 for possession of cocaine with the intent to sell or deliver. Defendant filed a pre-trial motion to suppress all evidence obtained after an allegedly illegal search and seizure. A suppression hearing was held on 3 March 2009 and the trial court denied Defendant's motion to suppress in an order signed 3 March 2009 and filed 5 March 2009. Defendant gave written notice of his intent to appeal the denial of his motion to suppress. Defendant then entered a guilty plea to a charge of possession of cocaine with the intent to distribute. Defendant did not give oral notice of appeal in open court at the time of his guilty plea. Defendant did file on 5 March 2009 a written notice of appeal “from the denial of Defendant's motion to suppress,” but Defendant did not appeal from his judgment of conviction.
N.C. Gen.Stat. § 15A-979(b) (2009) states that: “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” Defendant has failed to appeal from the judgment of conviction and our Court does not have jurisdiction to consider Defendant's appeal. State v. Taylor, ---N.C.App. ----, ----, 694 S.E.2d 522, ----, 2010 WL 1960851 (2010)(unpublished opinion) (); accord State v. Turner, 305 N.C. 356, 289 S.E.2d 368 (1982); and State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). “In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of state statute.” State v. McBride, 120 N.C.App. 623, 624, 463 S.E.2d 403, 404 (1995); see N.C. Gen.Stat. § 15A-1444 (2009). McBride, 120 N.C.App. at 625, 463 S.E.2d at 405 (internal citations omitted) (emphasis in original);...
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State v. Robinson
...("The notice of appeal ... shall designate the judgment or order from which appeal is taken ...."); see also State v. Miller , 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010) (holding that the court lacked jurisdiction to hear the defendant's appeal of his judgment because the defendant ......
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State v. Steele
...our jurisdictional requirement by memorializing his Notice of Appeal of the Judgment in this action. Cf. State v. Miller , 205 N.C. App. 724, 725-26, 696 S.E.2d 542, 542-43 (2010) (dismissing a defendant's appeal for lack of jurisdiction where defendant gave notice of appeal from the denial......
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State v. Hernandez
...motion to suppress, he failed to appeal from his final judgment, as required by N.C. [Gen.Stat.] § 15A–979(b).State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 542–43 (2010) (citations and quotation marks omitted). As a result, this Court dismissed the defendant's appeal. Id. at 726, ......
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State v. Thorpe
...appeal the trial court's judgment, which left this Court without jurisdiction to hear the appeal. Id. (citing State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 542 (2010)). Defendant then filed a petition for writ of certiorari, which this Court granted on 15 October 2012.II. Jurisdic......