Opinion
No. COA10-595
Filed 17 May 2011 This case not for publication
Appeal by the State from order entered 16 November 2009 by Judge L. Todd Burke in Rockingham County Superior Court. Heard in the Court of Appeals 4 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellee.
Rockingham County No. 09 CRS 50819.
The State appeals from the trial court's order allowing defendant Scottie Maurice Jeffries' motion to suppress evidence obtained during a pat down search. Although the State would ordinarily have a right to appeal from this order, the State failed to file a certificate required by N.C. Gen. Stat. § 15A-979(c) (2009). Consequently, this Court lacks jurisdiction over the appeal. We decline to grant the State's petition for writ of certiorari, and we dismiss the State's appeal.
On 6 April 2009, defendant was indicted for possession of a firearm by a felon. Subsequently, defendant filed a pretrial motion to suppress all evidence obtained as a result of a 20 February 2009 pat down search of defendant, claiming that the search violated his state and federal constitutional rights. The trial court conducted a pretrial hearing on the motion on 3 November 2009. Following the hearing, the court entered an order granting defendant's motion to suppress.
On 19 November 2009, the State filed written notice of appeal to this Court prior to the case being tried. N.C. Gen. Stat. § 15A-979(c) provides, however: "An order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case." The State failed to file the required certificate and acknowledges that, because of its failure to comply with N.C. Gen. Stat. § 15A-979(c), this Court lacks jurisdiction over its appeal.
The State nonetheless has filed a petition for writ of certiorari, attaching a certificate signed and filed in the superior court by the district attorney the day before the petition for writ of certiorari was filed in this Court. Defendant has, in turn, filed a motion to dismiss this appeal.
Discussion
"As a general rule, the State cannot appeal proceedings from a judgment in favor of the defendant in a criminal case in the absence of a statute clearly conferring that right." State v. Dobson, 51 N.C. App. 445, 446, 276 S.E.2d 480, 481 (1981). N.C. Gen. Stat. § 15A-1445(b) (2009) permits the State to "appeal an order by the superior court granting a motion to suppress as provided in G.S. 15A-979." In addition, N.C. Gen. Stat. § 15A-979(c) provides that an order granting a defendant's motion to suppress is appealable "prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case."
This Court has explained that N.C. Gen. Stat. § 15A-979(c) "constitutes a statutory prerequisite which must be met in order for the State to have the right to appeal, prior to trial, an order granting a motion to suppress." Dobson, 51 N.C. App. at 446-47, 276 S.E.2d at 482. Accordingly, this Court has repeatedly held that the State's failure to satisfy this prerequisite deprives the Court of jurisdiction. See, e.g., State v. Judd, 128 N.C. App. 328, 329, 494 S.E.2d 605, 606 (1998) ("Because the State did not follow the mandate of section 15A-979(c), this Court is without jurisdiction over the appeal."); State v. McDonald, 55 N.C. App. 393, 394, 285 S.E.2d 282, 283 (1982) ("The burden is on the State to demonstrate that it has the right to appeal and that it has followed the statutory mandate. The State has failed to fulfill the statutory requirements in this case. Therefore, the appeal by the State is not authorized by statute, and this court has no jurisdiction over the appeal." (internal citation omitted)).
In State v. Blandin, 60 N.C. App. 271, 272, 298 S.E.2d 759, 759 (1983), the State sought to cure its failure to timely file a N.C. Gen. Stat. § 15A-979(c) certificate by filing a motion to add the certificate at a later date. The defendant, however, insisted that "`[t]o give the State the right to file the certificate after the case has already been docketed in the appellate court would be to reduce the requirement of the certificate to a nullity. If G.S. § 15A-979(c) means anything at all, it means that the Court is bound to dismiss this appeal.'" 60 N.C. App. at 272, 298 S.E.2d 759-60. The Court found the defendant's argument "persuasive" and, accordingly, denied the State's motion and dismissed the appeal. Id. at 273, 298 S.E.2d at 760.
Although this case involves a petition for writ of certiorari attaching a belated certificate, we see no reason, in this case, to depart from the rationale of Blandin. Allowing the petition for writ of certiorari will, under the circumstances of this case, just as effectively nullify the requirement of N.C. Gen. Stat. § 15A-979(c). The State has cited no authority that would justify our disregarding Blandin. We, therefore, deny the State's petition for writ of certiorari and dismiss the appeal.
Dismissed.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).