State v. Felmet
| Citation | 302 N.C. 173,273 S.E.2d 708 |
| Decision Date | 27 January 1981 |
| Docket Number | No. 129,129 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE of North Carolina v. Joe Andrew FELMET. |
Rufus L. Edmisten, Atty. Gen. by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.
Pfefferkorn & Cooley, P. A. by Robert M. Elliot, Winston-Salem, for defendant-appellant.
The procedural issue raised on this appeal is whether the Court of Appeals erred in denying defendant's motion to amend the record to reflect proper jurisdiction in the trial court and then dismissing defendant's appeal for failure of the record to show jurisdiction. While we find no legal error or abuse of discretion in the denial of the motion and the dismissal, we have allowed the amendment in order to reach and decide the substantive issue of the case.
Defendant was charged with trespass in violation of G.S. 14-134, a misdemeanor offense. Exclusive original jurisdiction of all misdemeanors is in the district courts of North Carolina. G.S. 7A-272. The jurisdiction of the superior court for the trial of a misdemeanor, unless a circumstance enumerated in G.S. 7A-271(a) arises, is derivative and arises only upon appeal from a conviction of the misdemeanor in district court. State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973); see also G.S. 7A-271(b). The superior court has no jurisdiction to try a defendant on a warrant for a misdemeanor charge unless he is first tried, convicted and sentenced in district court and then appeals that judgment for a trial de novo in superior court. State v. Hall, 240 N.C. 109, 81 S.E.2d 189 (1954).
The printed record in this case indicates defendant was tried in the Superior Court of Forsyth County upon a warrant issued by a deputy clerk of court charging defendant with misdemeanor trespass. The record does not show defendant was ever tried in district court on this charge. The record reveals only that defendant was convicted by a jury in superior court and a suspended sentence imposed. The record fails to disclose derivative jurisdiction in the superior court through appeal of a district court conviction.
Rule 9(b)(3) of the North Carolina Rules of Appellate Procedure contains a list of documents and information which must be included in a record on appeal in a criminal case. This rule requires "a statement identifying the judge from whose judgment or order appeal is taken, the session at which the judgment or order was rendered ...." N.C.Rules of Appellate Procedure 9(b)(3)(ii). The Commentary accompanying this rule in part states:
The office of this item is simply to permit routine confirmation by the appellate court of the subject matter jurisdiction or "competence' of the particular trial judge and tribunal .... The elements enumerated are sufficient for this purpose when rounded out by the court's range of judicial notice.
Table III in the Appendix of Tables and Forms which accompanies the Rules of Appellate Procedure contains a suggested order or arrangement for a record on appeal in a criminal case. The list is based on successive trials in both district and superior courts but is stated to be adaptable to trial only in superior court by exclusion of items indicated by an asterisk. Those items which are marked by asterisks are items five and six which read 5. Judgment in district court.*
6. Entries showing appeal to superior court.*
These items should have been included in the record on appeal in this case but were not. Defendant had the duty to see the record on appeal was properly compiled. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965). The problem in this case is what significance or penalty to place on this omission from the record.
When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority. State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979); State v. Guffey, supra; State v. Evans, 262 N.C. 492, 137 S.E.2d 811 (1964); State v. Johnson, 251 N.C. 339, 111 S.E.2d 297 (1959). When the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed. State v. Hunter, 245 N.C. 607, 96 S.E.2d 840 (1957); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955); State v. Patterson, 222 N.C. 179, 22 S.E.2d 267 (1942). In the case before us, the record is silent and the Court of Appeals ex mero motu noted it was unable to determine that the superior court had jurisdiction.
When confronted with the record's deficiency on oral argument, defendant's counsel did not argue the superior court was without jurisdiction. Instead, he moved to amend the record to include the judgment of the district court and appeal entries therefrom. This motion, unopposed by the State, reflects proper jurisdiction in the superior court. The Court of Appeals, for reasons not readily apparent, denied the motion to amend. We cannot say the court abused its discretion because Rule 9(b)(6) of the Rules of Appellate Procedure specifies:
On motion of any party or on its own initiative the appellate court may order additional portions of a trial court record sent up and added to the record on appeal. On motion of any party the appellate court may order any portion of the record on appeal amended to correct error shown as to form or content.
(Emphasis added.) Even so, we have decided to allow the amendment to reflect subject matter jurisdiction and then pass upon the substantive issue of the appeal. This is the path we elect to follow. It is the better reasoned approach and avoids undue emphasis on procedural niceties.
The substantive issue presented is whether defendant's conduct which formed the basis of the charge of trespass was protected by the First Amendment to the United States Constitution and Article I, section 14 of the North Carolina Constitution. We conclude defendant's conduct was not protected free speech under either the Federal or State Constitution. His motion to dismiss the charge was properly denied.
The circumstances under which defendant was arrested can be summarized as follows. Hanes Mall is a large regional shopping center which contains fashion shops, several banking establishments and department stores. No government agencies are located in the facility. It is privately owned and operated. On 4 June 1979, Hanes Mall had a policy prohibiting any solicitation on the premises without...
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