State v. Howard , 70 N.C. App. 487 ( 1984 )

320 S.E.2d 17 (1984)

STATE of North Carolina
v.
Wesley Jay HOWARD.

No. 8310SC1196.

Court of Appeals of North Carolina.

September 18, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Walter M. Smith and Francis W. Crawley, Raleigh, for the State.

Tharrington, Smith & Hargrove by Wade M. Smith, Roger W. Smith, and Douglas E. Kingsbery, Raleigh, for defendant-appellant.

WHICHARD, Judge.

[I]n this State, no appeal in ordinary form lies in a criminal prosecution except from a judgment on conviction or on plea of guilt duly entered. (Citation omitted.) It would lead to interminable delay and render the enforcement of the criminal law well-nigh impossible if an appeal were allowed from every interlocutory order ... in the course of a criminal prosecution, or from any order except one in its nature final. Accordingly, it has been uniformly held with us ... that an ordinary statutory appeal will not be entertained except from a judgment on conviction or some judgment in its nature final.

State v. Webb, 155 N.C. 426, 430, 70 S.E. 1064, 1065-66 (1911). See also State v. Pledger, 257 N.C. 634, 638, 127 S.E.2d 337, 340 (1962) ("A defendant is entitled to appeal only from a final judgment.); State v. Inman, 224 N.C. 531, 541, 31 S.E.2d 641, 646 (1944), cert. denied, 323 U.S. 805, 65 S. Ct. 563, 89 L. Ed. 642 (1945); State v. Cox, 215 N.C. 458, 2 S.E.2d 370 (1939); State v. Hiatt, 211 N.C. 116, 117, 189 S.E. 124, 125 (1937) ("There was no judgment on conviction, or judgment prejudicial to the defendant in its nature final. The defendant therefore had no right to appeal ...."); State v. Blades, 209 N.C. 56, 57, 182 S.E. 714, 714 (1935) ("The ruling ... was an interlocutory judgment, and from this there was no right of appeal."); State v. Rooks, 207 N.C. 275, 176 S.E. 752 (1934); State v. Black, 7 N.C.App. 324, 328, 172 S.E.2d 217, 220 (1970).

The Criminal Procedure Act, G.S. 15A-101 et seq., did not alter the foregoing principle, which was established under statutes no longer in effect. In a case decided under that act, Judge (now Justice) Martin (Harry C.) stated: "Ordinarily in North Carolina an appeal will only lie from a final judgment. (Citations omitted.) In criminal cases, there is no appeal as a matter of right from an interlocutory order." State v. Ward, 46 N.C.App. 200, 203, 264 S.E.2d 737, 739 (1980).

The statute governing review of trial court rulings on motions for appropriate relief provides: "The grant or denial of relief sought pursuant to G.S. 15A-1414 is subject to appellate review only in an appeal regularly taken." G.S. 15A-1422(b). The statute governing "regularly taken" criminal appeals provides: "A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered." G.S. 15A-1444(a) (emphasis supplied).

These statutes, construed together, deny defendant the right to appeal at this juncture. Because the trial court set aside the verdict and vacated the judgment, defendant has not been convicted of any crime and no final judgment has been entered against him. He has been granted a new trial, at which he may secure acquittal or other disposition favorable to him. As the Supreme Court noted in Cox, supra, 215 N.C. at 459, 2 S.E.2d at 371: "Mayhap the final judgment will be acceptable without appeal."

The ruling from which defendant appeals is interlocutory, no substantial right has been affected, and the appeal must be dismissed.

Appeal dismissed.

ARNOLD and EAGLES, JJ., concur.