State v. McPhail ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1280
Filed: 5 May 2015
Mecklenburg County, No. 11 CRS 218388
STATE OF NORTH CAROLINA
v.
ROBERT MCPHAIL
Appeal by defendant from judgment entered 4 September 2014 by Judge
Beecher R. Gray in Mecklenburg County Superior Court. Heard in the Court of
Appeals 17 April 2015.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Babb,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathryn
L. VandenBerg, for defendant-appellant.
TYSON, Judge.
I. Background
Robert McPhail (“Defendant”) was convicted in April 2013 of first degree
murder and conspiracy to commit robbery with a dangerous weapon. He received
consecutive prison sentences of life without parole and 38 to 55 months.
On appeal, this Court found no error as to Defendant’s convictions, but found
the trial court’s restitution award to be unsupported by evidence. State v. McPhail,
STATE V. MCPHAIL
Opinion of the Court
2014 N.C. App. Lexis 903, **20-21 (N.C. Ct. App. Aug. 19, 2014) (“McPhail I”). In an
opinion filed 19 August 2014, we vacated the judgment entered upon Defendant’s first
degree murder conviction and remanded “for the entry of a new judgment containing
a properly calculated restitution award.” Id. at *21.
On remand, the trial court found that Defendant owed restitution to the
murder victim’s wife in the amount of $113,140.52. The trial court entered a new
judgment for first degree murder on 4 September 2014, reflecting the restitution
award. Defendant gave notice of appeal in open court.
II. Issues
Defendant now argues that the trial court lacked jurisdiction to enter the
judgment on 4 September 2014, because this Court’s mandate in McPhail I did not
issue until “twenty days after the written opinion of the court ha[d] been filed with
the clerk[,]” – i.e., on 8 September 2014. N.C.R. App. P. 32(b).
III. Analysis
The State concedes that the trial court was without jurisdiction to proceed in
this cause on 4 September 2014. We agree.
“An appeal removes a case from the trial court which is thereafter without
jurisdiction to proceed on the matter until the case is returned by mandate of the
appellate court.” Woodard v. Local Governmental Employees' Retirement Sys., 110
N.C. App. 83, 85, 428 S.E.2d 849, 850 (1993). Under Rule 32(b), this Court’s mandate
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STATE V. MCPHAIL
Opinion of the Court
in McPhail I issued on 8 September 2014, which was 20 days after the opinion filing
date of 19 August 2014. The trial court held the restitution hearing and entered its
new judgment on 4 September 2014, before its jurisdiction was restored.
IV. Conclusion
“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. Felmet, 302 N.C. 173, 176, 273 S.E.2d
708, 711 (1981). We vacate the judgment and remand for a new restitution hearing.
In light of our holding, we decline to address Defendant’s second argument
challenging the evidentiary support for the restitution award, which is moot.
VACATED AND REMANDED.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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