Aldridge v. State , 4 N.C. App. 297 ( 1969 )

Britt, J.

As was said by this court in Nolan v. State, 1 N.C. App. 618, 162 S.E. 2d 88, in an opinion by Parker, J., “[n]o appeal lies from a final judgment entered upon a petition and proceeding for post-conviction review under the North Carolina Post-Conviction Hearing Act, review being available only upon application by the petitioner or by the State for a Writ of Certiorari. G.S. 15-222. Accordingly, the appeal which petitioner has attempted to make in this case is dismissed.” Nevertheless, we have considered the record presently before us as a petition for a writ of certiorari to review the judgment sought to be appealed from and, thus considered, have carefully reviewed the entire record and considered all questions raised in the briefs.

G.S. 15-220 contains the following proviso:

“* * * The court may, in its discretion, grant leave at any stage of the proceeding prior to entry of judgment to withdraw the petition. Withdrawal of a petition shall constitute a waiver of any claim of denial of constitutional rights or of other error remediable under this article which has been alleged in the petition. * * *”

The sole argument brought forward in petitioner’s brief is that the quoted proviso is unconstitutional, being in conflict with sections 18 and 21 of Article I of the State Constitution and section 9(2) of Article I of the Federal Constitution.

In Lane v. Insurance Co., 258 N.C. 318, 128 S.E. 2d 398, in an opinion by Bobbitt, J., we find the following:

“On appeal, by brief in this Court, defendant challenges for the first time the constitutionality of G.S. 20-279.21 (f) (1) as construed in Swain when applied to an assigned risk policy. This constitutional question was not raised in the court below and may not be raised for the first time in this Court. Phillips v. Shaw, Comr. of Revenue, 238 N.C. 518, 78 S.E. 2d 314; Baker v. Varser, 240 N.C. 260, 267, 82 S.E. 2d 90; Pinnix v. Toomey, 242 N.C. 358, 367, 87 S.E. 2d 893. ‘Therefore, in conformity with the well established rule of appellate courts, we will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court below.’ Denny, J. (now C.J.), in S. v. Jones, 242 N.C. 563, 564, 89 S.E. 2d 129.”

Inasmuch as the constitutionality of the quoted proviso of G.S. 15-220 was not raised and passed upon in the superior court, we will not consider its constitutionality here.

For the reasons stated, the record docketed in this court is dismissed as an appeal and, considered as a petition for writ of cer-tiorari, the same is

Denied.

MallaRD, C.J., and PARKER, J., concur.