State v. Bell

468 S.E.2d 484 (1996) 121 N.C. App. 700

STATE of North Carolina
v.
Steven Wayne BELL.

No. COA95-291.

Court of Appeals of North Carolina.

March 5, 1996.

Attorney General Michael F. Easley by Assistant Attorney General Harriet F. Worley, for the State.

Boose & McSwain by Ronald D. McSwain, Fayetteville, for defendant-appellant.

EAGLES, Judge.

Defendant argues that the superior court erred in denying defendant's motion to dismiss because the superior court lacked jurisdiction to try the case. The superior court has "exclusive, original jurisdiction" to try defendants accused of felonies. G.S. 7A-271(a). The district court has jurisdiction over the trial of misdemeanors. G.S. 7A-272(a). Defendant argues that the superior court lacked jurisdiction over defendant's case because defendant was charged with a misdemeanor and the indictment did not raise the offense to a felony pursuant to G.S. 14-3(b). We agree.

An attempt to commit a felony is a misdemeanor. State v. Collins, 334 N.C. 54, 59, 431 S.E.2d 188, 191 (1993). Defendant was indicted for "Attempted Second Degree Kidnapping ... for the purpose of facilitating the commission of a felony." Pursuant to G.S. 14-3(b), a misdemeanor is elevated to a Class H felony if the misdemeanor offense is "infamous, done in secrecy and malice, or with deceit and intent to defraud." Here, the misdemeanor charge of attempted second degree kidnapping was never elevated to a Class H felony.

A bill of indictment "must allege all essential elements of the offense to be charged ... [so] that the defendant may be adequately informed of the offense with which he is charged ... [and may] have a reasonable opportunity to prepare his defense." State v. Preston, 73 N.C.App. 174, 176, 325 S.E.2d 686, 688 (1985). The indictment charging defendant with attempted second degree kidnapping stated that defendant "unlawfully, willfully and feloniously did attempt to kidnap Lisa Bunnell [sic], ... by unlawfully restraining her and removing her from one place to another, without her consent, and for the purpose of facilitating the commission of a felony." The indictment failed to charge that the offense was "infamous" or "done in secrecy and malice" or done "with deceit and intent to defraud." To elevate the misdemeanor offense to a felony pursuant to G.S. 14-3(b), the indictment must specifically state that the offense was "infamous" or "done in secrecy and malice" or done "with deceit and intent to defraud." State v. Rambert, 116 N.C.App. 89, 94, 446 S.E.2d 599, 602 (1994), reversed in part and remanded in part on other grounds, 341 N.C. 173, 459 S.E.2d 510 (1995); State v. Clemmons, 100 N.C.App. 286, 292, 396 S.E.2d 616, 619 (1990); Preston, 73 N.C.App. at 176, 325 S.E.2d at 688. The indictment here failed to notify defendant that the State sought a conviction for a felony; the indictment only charged defendant with a misdemeanor. Accordingly, the superior court did not have subject matter jurisdiction over the case. See State v. Jarvis, 50 N.C.App. 679, 681, 274 S.E.2d 852, 853 (1981) (stating that the superior court does not have jurisdiction over an offense if the indictment fails to allege the elements of a felony).

If the State had properly alleged in the indictment that the offense was "infamous," see Rambert, 116 N.C.App. at 94, 446 S.E.2d at 602, we believe that attempted second degree kidnapping would meet the requirements of an "infamous" offense within the meaning of G.S. 14-3(b). See State v. Mann, 317 N.C. 164, 172, 345 S.E.2d 365, 370 (1986) (holding solicitation to commit common law robbery is "an act of depravity[,] ... involv[es] moral turpitude[,] ... and [reveals] a mind fatally bent on mischief and a heart devoid of social duties").

Because we hold that the superior court lacked subject matter jurisdiction over defendant's case, we need not address defendant's remaining assignments of error.

Vacated and remanded.

JOHN C. MARTIN and MARK D. MARTIN, JJ., concur.