State v. McKoy

261 S.E.2d 226 (1980) 44 N.C. App. 516

STATE of North Carolina
v.
Lonzo McKOY.

No. 7912SC650.

Court of Appeals of North Carolina.

January 8, 1980. Certiorari Denied March 5, 1980.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.

Asst. Public Defender Rebecca J. Bosley, Fayetteville, for defendant appellant.

Certiorari Denied by Supreme Court March 5, 1980.

HEDRICK, Judge.

The warrants issued against defendant in this case charged misdemeanor offenses. The offense for which he was convicted is a violation of G.S. § 14-33(b)(4) (1977 Cum.Supp.), a misdemeanor. It is fundamental that the district courts of this State have exclusive original jurisdiction of misdemeanors. G.S. § 7A-272. The jurisdiction of the superior court is derivative and arises only upon an appeal from a conviction of the misdemeanor in the district court. State v. Caldwell, 21 N.C.App. 723, 205 S.E.2d 322 (1974); State v. Parks, 20 N.C.App. 207, 200 S.E.2d 837 (1973); State v. Byrd, 4 N.C.App. 672, 167 S.E.2d 522 (1969).

Although neither party has raised the question of jurisdiction, "[t]he Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed from." State v. Parks, supra, 20 N.C.App. at 208, 200 S.E.2d at 838. The record before us discloses absolutely nothing of the proceedings, if any, in the district court. There is, thus, nothing in the record to disclose how the superior court obtained jurisdiction of the case.

It is the duty of the defendant appellant to see that the record on appeal is properly made up and transmitted to this Court State v. Parks, supra; State v. Marshall, 11 N.C.App. 200, 180 S.E.2d 464 (1971). For the failure of the record in this case to show jurisdiction, the appeal must be dismissed. State v. Byrd, supra.

Appeal dismissed.

ROBERT M. MARTIN and WELLS, JJ., concur.