State v. Alphin

PARKER, J.

Both records filed herein are identical except that they contain the separate bills of indictment. Separate but identical briefs were filed. This was improper. The cases were consolidated for judgment and only one judgment has been entered. We have therefore consolidated the cases and consider them as constituting a single appeal.

Judgment in this case was entered at the August 1968 Criminal Session of Duplin Superior Court. The record on appeal was not docketed within 90 days after the date of the judgment, nor was any order entered within that time by the trial tribunal, for good cause, extending the time to docket the record on appeal in this Court. This appeal is, therefore, subject to dismissal for defendant’s failure to comply with the rules of this Court. Rule 5 of the Rules of Practice of the Court of Appeals.

When the judge of superior court holding the courts of the Fourth Judicial District entered his order dated 12 May .1969 directing defendant’s trial counsel to represent him in perfecting the appeal, more than eight months had elapsed from the date of the judgment appealed from. When he entered the order dated 30 June 1969 purporting to extend the time for docketing the record on appeal in this Court, approximately ten months had elapsed from the date of the judgment appealed from. The judge of superior court, while exhibiting commendable concern to protect the rights of the defendant, had no power to vary or modify the rules of the Court of Appeals. Defendant’s proper remedy would have been to file a petition for certiorari.

Treating defendant’s appeal as a petition for certiorari, we have carefully reviewed the record and can find no error. Defendant, represented by counsel, entered pleas of guilty to two charges of felonious larceny. He does not contend, and nothing in the record would indicate, that his pleas were other than freely, intelligently, and voluntarily entered. The sentence imposed was within statutory limits.

No error.

Campbell and Geaham, JJ., concur.