State v. Harless

Judge STEELMAN,

dissenting.

This is a case in which a felony guilty plea was taken in the District Court of Wilkes County pursuant to the provisions of N.C. Gen. Stat. § 7A-272. The appeal involves a handwritten probation revocation judgment that raises the question of whether the record on appeal was complete and in proper form. However, the sentence imposed of 4 to 5 months clearly shows that it was a felony judgment.

I respectfully dissent from the majority’s holding that this court lacks jurisdiction to hear an appeal of a felony probation revocation from the district court division.

The majority acknowledges State v. Hooper, 158 N.C. App. 654, - S.E.2d -(2003), which holds that an appeal from a felony probation revocation in the district court lies to this Court rather than to the superior court. One of our most important principles of appellate law in North Carolina is that: “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned, by a higher court.” In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989) (Emphasis added).

The majority states: “Given the probability of review by our Supreme Court, pursuant to section 7A-30(b) of the General Statutes, the issue of whether a defendant may properly appeal revocation of probation directly from the district court remains undecided.” This holding would change the law of this State so that when a panel on this Court decides an issue by a 2 to 1 vote, the decision does not become precedent binding upon this Court, pending an appeal to the Supreme Court.

The effect of the majority opinion is to sow the seeds of chaos and confusion in our trial court divisions, in that they now have two directly conflicting decisions of this Court on the identical issue which they are required to follow.