State v. Black
| Decision Date | 25 February 1970 |
| Docket Number | No. 7022SC73,7022SC73 |
| Citation | 7 N.C.App. 324,172 S.E.2d 217 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. William Winston BLACK. |
Atty. Gen. Robert Morgan by Asst. Atty. Gen. William W. Melvin and Staff Atty. T. Buie Costen, Raleigh, for the State.
Collier, Harris & Homesley by T. C. Homesley, Statesville, for defendant appellant.
On this record it can be questioned whether the defendant has properly moved for a jury trial in all three of the cases against him. The answer seems to depend upon the interpretation of the words 'above entitled matter' as used in the motion.
The defendant is not an indigent and is now and has been represented by privately employed counsel.
The only exceptions in the record appear under the assignments of error. This is not sufficient to present for review the questions sought to be presented. 1 Strong, N.C. Index 2d, Appeal and Error, § 24; see also State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967).
The exceptions and assignments of error are not set out in the brief and properly numbered with reference to the printed record as required by Rule 28 of the Rules of Practice in the Court of Appeals of North Carolina. See State v. Newton, 207 N.C. 323, 177 S.E. 184 (1934). A failure to comply with this rule also results in a failure to present for review the questions sought to be presented. Shepard v. La Grange Oil & Fuel Co., 242 N.C. 762, 89 S.E.2d 464 (1955); State v. Floyd, 241 N.C. 79, 84 S.E.2d 299 (1954).
Defendant's brief, under Rule 28, should have been filed by noon on 20 January 1970. It was not filed until 21 January 1970. On 22 January 1970 the Attorney General filed a motion to dismiss defendant's appeal for failure to file the brief on time and also for failure of the defendant to deliver or mail to the office of the Attorney General a copy of the defendant's brief on the same date it was filed, as required by Rule 28. The Attorney General's brief, under Rule 29, was due to be filed by noon of 27 January 1970. Defendant admits in his response to the Attorney General's motion that 'due to an oversight' on the part of his attorney, he did not send the Attorney General a copy of his brief until 26 January 1970.
The Supreme Court of North Carolina has exclusive authority to make rules of procedure and practice for the Appellate Division of the General Court of Justice. N.C. Constitution, Article IV, § 11. Pursuant to this authority the Supreme Court has prescribed, approved, and adopted the Rules of Practice in the Court of Appeals of North Carolina. See 1969 Supplement to the Appendix appearing in Volume 4A of the General Statutes of North Carolina. These rules are mandatory and not directory. Cudworth v. Reserve Life Insurance Co., 243 N.C. 584, 91 S.E.2d 580 (1956); State v. Moore, 210 N.C. 686, 188 S.E. 421 (1936).
For all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases. G.S. § 7A--27. In civil actions there is also an appeal from certain interlocutory orders or judgments of the superior court or district court as is provided in G.S. § 7A--27(d).
The defendant has not been tried on the three charges pending against him. The appeal is therefore not from a final judgment on the warrants but is from interlocutory orders. In a criminal case there is no provision in the statute for an appeal to the Court of Appeals as a matter of right from an interlocutory order entered therein. G.S. § 7A--27; State v. Lentz, 5 N.C.App. 177, 167 S.E.2d 887 (1969); State v. Lance, 1 N.C.App. 620, 162 S.E.2d 154 (1968); State v. Henry, 1 N.C.App. 409, 161 S.E.2d 622 (1968). In the case of State v. Smith, 4 N.C.App. 491, 166 S.E.2d 870 (1969), an appeal from an order denying defendant's motion to dismiss a bill of indictment against him on the ground that he was deprived of his constitutional right to a speedy trial was held to be an appeal from an interlocutory order, and the appeal was dismissed.
In this case the defendant attempts to appeal from the order denying his motion to dismiss on the ground that he was...
To continue reading
Request your trial
-
State v. J.C.
...the superior court or the district court in civil and criminal cases" (first alteration in original) (quoting State v. Black , 7 N.C. App. 324, 327, 172 S.E.2d 217, 219 (1970) (citing N.C.G.S. § 7A-27 ))). The issues listed in N.C.G.S. § 15A-1445(a) as appealable by the State are the types ......
-
State v. Ward
...488, 57 S.E.2d 645 (1950). In criminal cases, there is no appeal as a matter of right from an interlocutory order. State v. Black, 7 N.C.App. 324, 172 S.E.2d 217 (1970). An interlocutory order which does not put an end to the action is not appealable unless it seriously affects a substantia......
-
State v. Koonce, No. COA08-777 (N.C. App. 5/19/2009)
...provides "an unlimited right of appeal . . . to the Appellate Division of the General Court of Justice." State v. Black, 7 N.C. App. 324, 327, 172 S.E.2d 217, 219 (1970). A defendant who pleads guilty is, however, only entitled to appeal as a matter of right in limited circumstances. Jamers......
-
State v. Joseph
...denial of defendant's motion to dismiss on double jeopardy ground did not affect a substantial right); but see State v. Black, 7 N.C.App. 324, 172 S.E.2d 217 (1970) (no statutory right to interlocutory criminal The source of this confusion is an earlier pair of decisions by our Supreme Cour......