State v. Miller
| Decision Date | 17 May 2016 |
| Docket Number | No. COA14–1310–2.,COA14–1310–2. |
| Citation | 247 N.C.App. 628,786 S.E.2d 367 |
| Parties | STATE of North Carolina v. Brent Tyler MILLER. |
| Court | North Carolina Court of Appeals |
Attorney General, Roy Cooper, by Assistant Attorney General, Derrick C. Mertz, for the State.
Tin, Fulton, Walker, & Owen, PLLC, Charlotte, by Noell P. Tin, for defendant.
Upon remand from the Supreme Court of North Carolina to address the remaining issues, State v. Miller, ––– N.C. ––––, 783 S.E.2d 194 (2016). The State appeals from the superior court's order, which denied the State a hearing de novo under N.C. Gen.Stat. § 20–38.7(a) from the district court's "preliminary determination" that Defendant's motion to suppress should be granted.
The procedural history of this case is set forth in this Court's prior opinion. State v. Miller, ––– N.C.App. ––––, 773 S.E.2d 574, 2015 N.C.App. LEXIS 398 (unpublished).
This Court filed a unanimous, unpublished opinion on 19 May 2015, which dismissed the State's appeal for lack of appellate jurisdiction. We also did not have jurisdiction to review the State's issue on appeal by writ of certiorari. The record on appeal before us at that time failed to show the court's order the State had purportedly appealed from was "entered" pursuant to N.C. Gen.Stat. § 15A–1432(e) (2015) ( .
This Court's filed opinion, upon which the mandate issued on 8 June 2015, dismissed the State's appeal for lack of jurisdiction. See N.C. R.App. P. 32(b). The State failed to meet its burden, as appellant, to show in the record on appeal that the order appealed from had been "entered."
Entering a judgment or an order is a ministerial act which consists in spreading it upon the record.... [A] judgment or an order is entered under [ Rule 4(a) ] when the clerk of court records or files the judge's decision regarding the judgment or order.
State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012) (citation and quotation marks omitted) (emphasis in original).
The record before this Court, when the appeal was heard, failed to meet the State's jurisdictional burden to show the order the State purportedly appealed from had been "entered" in accordance with the N.C. Gen.Stat. § 15A–1432(e) and rule set forth in Oates. The Supreme Court entered an order allowing an amendment of the record to add the minutes of the relevant superior court session, to allow the appellant to show the Clerk of Superior Court of Mecklenburg County had, in fact, "entered" the order appealed from by recording or filing the judge's decision in accordance with the statute and Oates. See Order Amending Record on Appeal 17 Mar. 2016; Miller, ––– N.C. at ––––, 783 S.E.2d at 200 ; Oates, 366 N.C. at 266, 732 S.E.2d at 573.
After amending the record on appeal to reflect the clerk's entry of the court's order, the Supreme Court determined the order appealed from had been properly "entered" to provide jurisdiction in the Appellate Division, and remanded to this Court for consideration of the remaining issues asserted in the State's appeal.
"It is well established that the appellant bears the burden of showing to this Court that the appeal is proper." Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338, affirmed, 360 N.C. 53, 619 S.E.2d 502 (2005). Appellant's failure to initially demonstrate and establish appellate jurisdiction in this Court unnecessarily expended scarce appellate judicial resources. " ‘It is ... not the duty of this Court to construct arguments for or find support for appellant's right to appeal.’ " Id. (quoting Thompson v. Norfolk & Southern Ry., 140 N.C.App. 115, 121, 535 S.E.2d 397, 401 (2000) ).
Defendant argues the State's appeal should be dismissed because the State's notice of appeal to this Court is insufficient to confer jurisdiction. This separate argument for dismissal of the State's appeal has not been addressed by either this Court or by the Supreme Court. Prior to the original hearing date of this case, the State also filed a petition for writ of certiorari, to seek review of the superior court's 15 November 2013 order, in the event this Court determines the State had failed to file a proper notice of appeal to this Court.
In a case involving an implied consent offense, "[t]he State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss." N.C. Gen.Stat. § 20–38.7(a) (2015). After it considers the State's appeal from the district court's "preliminary determination", the superior court must "then enter an order remanding the matter to the district court with instructions to finally grant or deny the defendant's pretrial motion." State v. Fowler, 197 N.C.App. 1, 11, 676 S.E.2d 523, 535 (2009), disc. review denied, 364 N.C. 129, 696 S.E.2d 695 (2010).
The State does not have any right to directly appeal to the appellate division from the district court's final order granting a defendant's pretrial motion to suppress evidence. Id. at 29, 676 S.E.2d at 546. The State must again appeal "to the superior court from [the] district court's final dismissal of criminal charges against [the] defendant." Id. (emphasis in original). Only then may the State appeal to the appellate division from the superior court's entered order, affirming the district court's final order of dismissal under N.C. Gen.Stat. § 15A–1432(e). Id. at 7, 676 S.E.2d at 532 ().
Here, the State appealed to the superior court from the district court's preliminary determination granting Defendant's motion to suppress. N.C. Gen.Stat. § 20–38.7(a). By order entered 15 November 2013, the superior court determined the State's general notice of appeal, without more, was insufficient and declined to grant the State a de novo hearing.
The superior court remanded the case to the district court for entry of a final order. The superior court entered an oral order "affirming" the final order of the district court on 2 June 2014, which provided a statutory avenue for the State's appeal to this Court under N.C. Gen.Stat. § 15A–1432(e). The State's "notice of appeal" to this Court states as follows:
NOW COMES the State of North Carolina, by and through the undersigned Assistant District Attorney, pursuant to N.C.G.S. § 15A–1445(a)(1), and gives notice of appeal from the Superior Court of Mecklenburg County to the North Carolina Court of Appeals from the Order of the Honorable Linwood O. Foust, Superior Court Judge presiding, issued June 2, 2014, in which the Court granted the defendant's motion to suppress pursuant to N.C.G.S. § 15A–954(a)(1) and N.C.G.S. § 15A–954(a)(8).
In its sole argument on appeal, the State argues the superior court erred by denying the State a de novo evidentiary hearing from the district court's order granting Defendant's motion to suppress. The order to which the State assigns error was issued by the superior court on 15 November 2013, and which dismissed the State's appeal and denied the State's request for a de novo hearing. This order is not mentioned nor addressed in the State's notice of appeal to this Court.
Defendant argues this Court is without jurisdiction to address the State's appeal, because the State has appealed from the incorrect order. Defendant asserts the express language of the State's notice of appeal shows the State has appealed from the superior court's order issued on 2 June 2014, which was entered at the State's request to affirm the district court's final order granting Defendant's motion to suppress.
"As a general rule an appeal will not lie until there is a final determination of the whole case." State v. Newman, 186 N.C.App. 382, 384, 651 S.E.2d 584, 586 (2007), disc. review denied, 362 N.C. 478, 667 S.E.2d 234 (2008) (citation omitted). The 15 November 2013 order of the superior court was not a final order and is interlocutory under the current statutory scheme. For the State to appeal from the 15 November 2013 order, the case was required to be remanded to the district court for entry of a final order of its "preliminary determination" to suppress and subsequently be appealed to the superior court to enter an order affirming the district court's final order. Fowler, 197 N.C.App. at 11, 676 S.E.2d at 535 ; N.C. Gen.Stat. § 15A–1432(a) and (e).
The district court's final order, affirmed by the superior court on 2 June 2014, stated the superior court's denial of a hearing de novo was the basis for entry of the order. Here, notice of appeal from the superior court's order entered 2 June 2014, constituted notice of appeal to the previous proceedings. The State's failure to cite to the 15 November 2013 order does not divest this Court of jurisdiction to hear the issues raised by the State's appeal.
Defendant also argues the State's notice of appeal to this Court cites an incorrect statute to support its contention that the State has a right to seek review in the appellate division. The statute cited in the State's notice of appeal to this Court, N.C. Gen.Stat. § 15A–1445(a)(1), provides the State may appeal from the superior court to the appellate division "[w]hen there has been a decision or judgment dismissing criminal charges as to one or more counts." N.C. Gen.Stat. § 15A–1445(a)(1) (2015). Defendant contends...
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State v. Parisi
...process for implied-consent offenses has been the subject of several recent cases before our courts. See e.g. , State v. Miller , ––– N.C.App. ––––, 786 S.E.2d 367 (2016) ; State v. Bryan , 230 N.C.App. 324, 749 S.E.2d 900 (2013), disc. review denied , 367 N.C. 330, 755 S.E.2d 615 (2014) ; ......