State v. Killian

BRITT, Judge.

While the point had not been raised by the State when this case came on for oral argument, we questioned the right of defendant to appeal a criminal cause from the district court to this court. Consequently, we allowed the defendant and the State to file supplemental briefs addressed to that question. After consideration of the authorities cited in the supplemental briefs and other authorities, we hold that defendant does not have that right.

Our State Constitution, Article IV, § 12(2), provides that “[t]he Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.” G.S. 7A-26 provides: “The Supreme Court and the Court of Appeals respectively have jurisdiction to review upon appeal decisions of the several courts of the General Court of Justice and of administrative agencies, upon matters of law or legal inference, in accordance with the system of appeals provided in this article.” (Emphasis added.) G.S. 7A-27 provides for appeals from the district court to the Court of Appeals from final judgments and certain interlocutory orders or judgments in civil actions. Article 22 of Chapter 7A is entitled “Jurisdiction of the Trial Divisions in Criminal Actions” and within that article G.S. 7A-271(b) specifically provides that “ [a] ppeals by the State or the defendant from the district court are to the superior court. ...” We think the last quoted statute clearly mandates our holding.

We perceive the constitutional and statutory structure of our General Court of Justice to provide that, generally, appeals from the district court in civil causes go to the Court of Appeals, while appeals in criminal causes must go first to the superior court.

In view of the foregoing, we do not reach the question of whether the action or inaction of the trial court from which defendant attempted to appeal violated his constitutional rights as declared in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 2d 1 (1967). The question must be considered in the superior court before it can be considered by us.

For the reasons stated, the appeal, ex mero motu, is

Dismissed.

Chief Judge Brock and Judge Clark concur.