State v. Teat , 22 N.C. App. 484 ( 1974 )

206 S.E.2d 732 (1974) 22 N.C. App. 484

STATE of North Carolina
v.
John R. TEAT.

No. 7427SC480.

Court of Appeals of North Carolina.

July 17, 1974. Certiorari Denied September 3, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Lester V. Chalmers, Jr., Raleigh, for the State.

Frank Patton Cooke, Gastonia, for defendant.

Certiorari Denied by Supreme Court September 3, 1974.

BROCK, Chief Judge.

It is clear that Judge McLean undertook to vacate a judgment and set aside a verdict rendered during a session of court which had long since expired.

All matters pending before the court are in fieri during the session. During the session at which a criminal case is tried, the court has power to vacate the judgment, set aside the verdict and order a new trial. With two exceptions, after the expiration of the session at which the case is tried, such power does not exist in criminal cases. The two exceptions are: where the case is kept alive by appeal, a motion for a new trial for newly discovered evidence may be made at the next succeeding session after certification of the opinion of a court of the appellate division, 3 Strong, N.C. Index 2d, Criminal Law, § 131, p. 53; and matters cognizable in a post-conviction hearing. G.S., Chap. 15, Art. 22. See, State v. Cagle, 241 N.C. 134, 84 S.E.2d 649; State v. McLamb, 208 N.C. 378, 180 S.E. 586; 3 Strong, N.C. Index 2d, Criminal Law, § 144, p. 85. The authority for action in civil cases, after expiration of the session, is set forth in the Rules of Civil Procedure, G.S., Chap. 1A.

Judge McLean did not have the authority to entertain defendant's motion for a new trial, and the order of 30 April 1973 will be vacated.

As this Court stated in State v. Neely, 21 N.C.App. 439, 204 S.E.2d 531:

"Defendant should have proceeded to compile his record on appeal to the extent possible. If the Reporter is unable to furnish a transcript, a statement of that fact, agreed to by the Solicitor or settled by the judge, should be included in the record on appeal. In lieu of the usual narrative statement of evidence, defendant should set out the facts upon which his appeal is based, any defects appearing on the face of the record, and the errors he contends were committed at the trial. If the circumstances so justify, defendant might also assert as an assignment of error that he is unable to obtain an effective appellate review of errors committed during the trial proceeding because of the inability of the Reporter to prepare a transcript. As agreed upon by counsel, or as settled by the trial judge, the record on appeal as above compiled should be docketed in this Court.

"If defendant had proceeded as outlined above, this Court would be in a position to determine whether fair and proper administration of justice required a new trial.

"It is possible, if he feels so advised, for defendant now to prepare such a record on appeal and present it to this Court with a proper petition for writ of certiorari seeking a review."

The order of 30 April 1973 is

Vacated.

CAMPBELL and HEDRICK, JJ., concur.