State v. Black

172 S.E.2d 217 (1970) 7 N.C. App. 324

STATE of North Carolina
v.
William Winston BLACK.

No. 7022SC73.

Court of Appeals of North Carolina.

February 25, 1970.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. William W. Melvin and Staff Atty. T. Buie Costen, Raleigh, for the State.

Collier, Harris & Homesley by T. C. Homesley, Statesville, for defendant appellant.

MALLARD, Chief Judge.

On this record it can be questioned whether the defendant has properly moved for a jury trial in all three of the cases against him. The answer seems to depend upon the interpretation of the words "above entitled matter" as used in the motion.

The defendant is not an indigent and is now and has been represented by privately employed counsel.

The only exceptions in the record appear under the assignments of error. This is not sufficient to present for review the questions sought to be presented. 1 Strong, N.C. Index 2d, Appeal and Error, § 24; see also State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967).

The exceptions and assignments of error are not set out in the brief and properly numbered with reference to the printed record as required by Rule 28 of the Rules of Practice in the Court of Appeals of North Carolina. See State v. Newton, 207 N.C. 323, 177 S.E. 184 (1934). A failure to comply with this rule also results in a failure to present for review the questions sought to be presented. Shepard v. La Grange Oil & Fuel Co., 242 N.C. 762, 89 S.E.2d 464 (1955); State v. Floyd, 241 N.C. 79, 84 S.E.2d 299 (1954).

Defendant's brief, under Rule 28, should have been filed by noon on 20 January 1970. It was not filed until 21 January 1970. On 22 January 1970 the Attorney General filed a motion to dismiss defendant's appeal for failure to file the brief on time and also for failure of the defendant to deliver or mail to the office of the Attorney General a copy of the defendant's brief on the same date it was filed, as required by Rule 28. The Attorney General's brief, under Rule 29, was due to be filed by noon of 27 January 1970. Defendant admits in his response to the Attorney General's motion that "due to an oversight" on the part of his attorney, he did not send the Attorney General a copy of his brief until 26 January 1970.

The Supreme Court of North Carolina has exclusive authority to make rules of procedure and practice for the Appellate Division of the General Court of Justice. N.C. Constitution, Article IV, § 11. Pursuant to this authority the Supreme Court has prescribed, approved, and adopted the Rules of Practice in the Court of Appeals of North Carolina. See 1969 Supplement to the Appendix appearing in Volume 4A of the General Statutes of North Carolina. These rules are mandatory and not directory. Cudworth v. Reserve Life Insurance Co., 243 N.C. 584, 91 S.E.2d 580 (1956); State v. Moore, 210 N.C. 686, 188 S.E. 421 (1936).

For all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases. G.S. § 7A-27. In civil actions there is also an appeal from certain interlocutory orders or judgments of the superior court or district court as is provided in G.S. § 7A-27(d).

The defendant has not been tried on the three charges pending against him. The appeal is therefore not from a final judgment on the warrants but is from interlocutory orders. In a criminal case there is no provision in the statute for an appeal to the Court of Appeals as a matter of right from an interlocutory order entered therein. G.S. § 7A-27; State v. Lentz, 5 N.C. App. 177, 167 S.E.2d 887 (1969); State v. Lance, 1 N.C.App. 620, 162 S.E.2d 154 (1968); State v. Henry, 1 N.C.App. 409, 161 S.E.2d 622 (1968). In the case of State v. Smith, 4 N.C.App. 491, 166 S.E.2d 870 (1969), an appeal from an order denying defendant's motion to dismiss a bill of indictment against him on the ground that he was deprived of his constitutional right to a speedy trial was held to be an appeal from an interlocutory order, and the appeal was dismissed.

In this case the defendant attempts to appeal from the order denying his motion to dismiss on the ground that he was denied the right to a speedy trial. He also attempts to appeal from the order remanding the cases to the Mooresville Recorder's Court. Both of these orders are interlocutory orders, and this appeal is therefore subject to dismissal.

The right to appeal must be exercised in accordance with the established rules of practice and procedure. State v. Moore, supra; Wolfe v. North Carolina, 364 U.S. 177, 80 S. Ct. 1482, 4 L. Ed. 2d 1650. In order to preserve the right to appellate review, one must comply with the applicable rules; and upon a failure to do so, the appeal may be dismissed as provided in Rule 48 of the Rules of Practice in the Court of Appeals.

As hereinabove set out, the appellant has failed to comply with the Rules of Practice in this Court. However, we have examined the record and find no valid reason for disturbing the order of Judge Armstrong in denying defendant's motion to dismiss and remanding the cases to the Mooresville Recorder's Court for disposition as provided by law. See State v. Rooks, 207 N.C. 275, 176 S.E. 752 (1934). Neither do we find any valid reason for treating defendant's appeal as a petition for a writ of certiorari as requested in his response to the Attorney General's motion to dismiss.

The defendant has failed to comply with the rules, and the attempted appeal is premature. For these reasons, the appeal should be dismissed.

Appeal dismissed.

MORRIS and VAUGHN, JJ., concur.