State v. Petersilie, 9124SC313

• Decision Date: 21 January 1992
• Docket Number: No. 9124SC313,9124SC313
• Citation: 414 S.E.2d 41,105 N.C.App. 233
• Parties: STATE of North Carolina v. Frank W. PETERSILIE.
• Court: North Carolina Court of Appeals

Page 41

414 S.E.2d 41

105 N.C.App. 233

STATE of North Carolina v. Frank W. PETERSILIE.

No. 9124SC313.

Court of Appeals of North Carolina.

Jan. 21, 1992.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James Wallace, Jr., Raleigh, for the State on the brief only.

Chester E. Whittle, Jr., Boone, for defendant-appellant.

JOHNSON, Judge.

Defendant was convicted in superior court of publishing unsigned campaign material in connection with an election, in violation of G.S. § 163-274(7) (1991). On appeal defendant challenges the constitutionality of the statute under both the state and federal constitutions and also alleges other errors in the admission of certain testimony. The record on appeal before us includes copies of two indictments handed down by the grand jury and dated 19 February 1990, an arrest warrant dated 19 February 1990, the docket sheet, the jury verdict forms and the judgment. Defendant was tried before a jury in superior court and convicted on all counts.

Although neither party raises the issue, we find that initially we must decide whether the superior court which tried this case had subject matter jurisdiction over the action. Because we find that the superior court did not have jurisdiction we vacate the judgment and remand the case.

A violation of G.S. § 163-274(7) constitutes a misdemeanor offense. The district courts of North Carolina have exclusive original jurisdiction for the trial of criminal misdemeanor offenses. G.S. § 7A-272. The superior courts of North Carolina have exclusive original jurisdiction over all criminal actions not assigned to the district court division except that the superior courts have jurisdiction to try a misdemeanor offense where (1) it is a lesser included offense of a felony properly before the court by indictment or information, (2) the charge is initiated by presentment, (3) the misdemeanor is properly consolidated for trial with a felony, (4) a plea of guilty or nolo contendere is tendered in lieu of a felony charge, or (5) a misdemeanor conviction is appealed for trial de novo, to accept a guilty plea to a lesser included or related charge. G.S. § 7A-271(a)(1)-(5). The superior court may also try misdemeanors under its derivative jurisdiction. This arises from the appeal of a conviction in district court. G.S. § 7A-271(b); State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973). See also State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967) (jurisdiction of district and superior courts).

As explained in State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981):

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. When the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed (citations omitted).

Id. at 176, 273 S.E.2d at 711.

Thus, we must determine if the record before us "shows a lack of jurisdiction in the lower court" so that we must vacate the judgment below or whether it is simply "silent" on the question of jurisdiction such that we should dismiss this appeal.

In Felmet, defendant was convicted in superior court of a misdemeanor. The record on appeal indicated that defendant was tried upon a warrant issued by a deputy clerk of court charging the defendant with misdemeanor trespass. The record, however, lacked any indication that defendant was ever tried in district court, thus there was no evidence of the superior court's derivative jurisdiction. The Felmet Court held that the record before it was "silent" and although it allowed defendant to amend the record to show derivative jurisdiction, it did not fault the Court of Appeals for having dismissed the appeal because the record failed to show the basis for jurisdiction in the trial court. The Felmet Court cited three cases to illustrate the situation where the record is "silent" as to jurisdiction. See 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 all three cases, defendants appealed from convictions in superior court on misdemeanor charges which originated with warrants issued by a clerk. The records before the appellate court, however, failed to show that the defendants had been convicted in district court and had appealed to ...