State v. Stubbs

DILLON, Judge,

concurring in separate opinion.

I agree with the majority opinion. However, I write to address the jurisdiction question raised by the parties and discussed in footnote 3 of the majority opinion. I believe that the “law of the case” principle, referenced in that footnote, generally compels a panel of this Court to follow the decisions of another panel made in the same case. However, I do not believe a panel is compelled to follow the “law of the case” where the issue concerns subject matter jurisdiction. See McAllister v. Cone Mills Corporation, 88 N.C. App. 577, 364 S.E.2d 186 (1988). In McAllister we held that a superior corut judge had the authority to determine whether it had subject matter jurisdiction to consider a matter after another superior court judge, in a prior hearing, had denied a motion to dismiss the matter based on lack of subject matter jurisdiction, stating that “[i]f a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.” Id. at 579, 364 S.E.2d at 188. Therefore, I believe we are compelled to make a determination whether the panel of this Court which granted the State’s petition for writ of certiorari - which is the basis for our panel’s jurisdiction - had the authority to do so.

The North Carolina Constitution states that this Court has appellate jurisdiction “as the General Assembly may prescribe.” N.C. Const. Article IV, Section 12(2). Our General Assembly has prescribed that this Court has jurisdiction “to issue . . . prerogative writs, including . . . cer-tiorari ... to supervise and control the proceedings of any of the trial courts. . . .’’N.C. Gen. Stat. § 7A-32(c) (2011).¹ The General Assembly further has prescribed that the “practice and procedure” by which this Court exercises its jurisdiction to issue writs of certiorari is provided, in part, by “rule of the Supreme Court.” Id. The Supreme Court has enacted the Rules of Appellate Procedure, which includes Rule 21, providing that writs of certiorari may be issued by either this Court or the Supreme Court in three specific circumstances, none of which applies to the State’s appeal in this case.

Defendant argues that the subject matter jurisdiction of this Court to issue writs of certiorari is limited to the three circumstances listed in Rule 21. The State argues that Rule 21 is not intended to limit the subject matter jurisdiction of this Court but is simply a “rule” establishing a “practice and procedure,” and that Rule 2 - which allows this Court to “suspend or vary the requirements of any of these rules” - provides an avenue by which this Court may exercise the jurisdiction granted by the General Assembly in N.C. Gen. Stat. § 7A-32 to issue writs of certiorari for matters not stated in Rule 21. There is language in decisions of this Court which suggests that our authority to grant writs of certiorari is limited to the three circumstances described in Rule 21. See, e.g., State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d 867, 872 (2002) (dismissing a petition for writ of certiorari, stating that since the appeal was not within the scope of Rule 21, this Court “does not have the authority to issue a writ of certiorari”). However, there is language in other decisions which suggests that this Court may invoke Rule 2 to consider writs of certiorari in circumstances not covered by Rule 21. See, e.g., State v. Starkey, 177 N.C. App. 264, 268, 628 S.E.2d 424, 426 (2006) (denying a petition for writ of certiorari by refusing to invoke Rule 2).

I believe that our approach in Starkey - suggesting that our subject matter jurisdiction to issue writs of certiorari is not limited to the circumstances contained in Rule 21 - is correct. Our Supreme Court and this Court has recognized the authority of our appellate courts to issue writs of certiorari in circumstances not contained in Rule 21. See, e.g., State v. Bolinger, 320 N.C. 596, 601-02, 359 S.E.2d 459, 462 (1987) (holding that a defendant may obtain appellate review through a writ of cer-tiorari. to challenge the procedures followed in accepting a guilty plea, notwithstanding that the defendant does not have the statutory right to appellate review); see also State v. Carriker, 180 N.C. App. 470, 471, 637 S.E.2d 557, 558 (2006) (holding that a challenge to procedures in accepting a guilty plea is reviewable by certiorari'). Additionally, in Rule 1 of the Rules of Appellate Procedure, our Supreme Court stated that the appellate rules “shall not be construed to extend or limit the jurisdiction of the courts of the appellate division[.]” Id.

Accordingly, I believe that the panel of this Court which considered the State’s petition for a writ of certiorari had the authority to grant the writ, notwithstanding that an appeal by the State from an order granting a defendant’s motion for appropriate relief is not among the circumstances contained in N.C.R. App. P. 21; and, therefore, we are bound by the decision of that panel.

1 . This language employed by the General Assembly is similar to the language in our Constitution defining the jurisdictional limits of our Supreme Court, which includes the authority of “general supervision and control over the proceedings of the other courts.” N.C. Const, art. IV, § 12(1).