Judge JOHNSON dissenting.

On 13 April 1981, defendant was charged in a proper bill of indictment with the murder of David Lee Height. Defendant's first trial, which commenced on 18 April 1983, was declared a mistrial by the presiding judge, the Honorable Samuel E. Britt, who believed the jury was deadlocked. Defendant filed objections and exceptions to the order declaring a mistrial, moved to dismiss the indictment against him on double jeopardy grounds, and petitioned the court for a writ of habeas corpus to release him from custody. Both the motion to dismiss and the petition for a writ of habeas corpus were denied.

Subsequently, defendant petitioned the Supreme Court for writs of supersedeas, mandamus, and habeas corpus based on his double jeopardy claim. The Supreme Court issued an order on 3 May 1983 vacating Judge Britt's mistrial order and remanding the case to the Wake County Superior Court for a de novo plenary hearing to be conducted before a judge other than Judge Britt. The Honorable James H. Pou Bailey presided over the de novo hearing, and after hearing the evidence and arguments of counsel, denied defendant's petition for a writ of habeas corpus. Defendant again petitioned the Supreme Court for writs of supersedeas and certiorari arguing that his retrial was barred by double jeopardy principles, but both petitions were denied. Defendant filed a similar motion and petition in the United States District Court for the Eastern District of North Carolina but did not succeed in blocking his retrial.

Defendant's second trial commenced before the Honorable Anthony M. Brannon on 20 June 1983. Prior to the start of the trial, defendant moved to dismiss the indictment on the grounds that his retrial was barred by the Double Jeopardy Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution. Judge Brannon denied the motion to dismiss and defendant gave immediate notice of appeal. Judge Brannon refused to stay the trial proceedings pending the outcome of the appeal, and the second trial began. That same day defendant filed petitions in this Court for writs of supersedeas and prohibition to block the trial which were denied. The second trial ended in a mistrial on 22 June 1983. At his third trial, defendant was convicted of second degree murder and sentenced to a term of imprisonment.

The present appeal relates to the denial of defendant's motion to dismiss the indictment on 20 June 1983 prior to his second trial. Defendant has separately appealed from the judgment entered at his third trial.

WEBB, Judge.

The only question presented by this appeal is whether defendant has a right, to appeal the denial of his motion to dismiss the indictment on double jeopardy grounds prior to being put to trial a second time. We hold that he does not have such a right.

Defendant, citing Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), contends that as a matter of constitutional law, an appeal from the denial of a motion based on double jeopardy must be litigated to completion before a second trial may begin. In Abney, the Supreme Court addressed the narrow issue of "whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291 and thus immediately appealable." Id. at 653, 97 S.Ct. at 2037, 52 L.Ed 2d at 655-56. The Supreme Court held that such orders are "final decisions" within the meaning of 1291 and thus are immediately appealable. The Court in Abney was concerned only with interpreting a federal appellate jurisdiction statute and did not address the question of whether there is a constitutional right to appeal a pretrial order denying a motion based on double jeopardy prior to retrial. For this reason, only federal courts are bound by Abney.

The Supreme Court explicitly recognized in Abney that there is no constitutional right to an appeal and stated further "[t]he right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that, statutory right of appeal one must come within the terms of the applicable statute. . ." Id. at 656, 97 S.Ct. at 2038-39, 52 L.Ed.2d at 658. The applicable statutes in this case are G.S. 7A-27 and G.S. 1-277. G.S. 1-277 and 7A-27, taken together, provide that no appeal lies to an appellate court from an interlocutory order unless such order deprives the appellant of a substantial right which he would lose if the order is not reviewed before final judgment. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983); Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974), reh'g denied, 286 N.C. 547 (1974).

It is without dispute that the pretrial order in the present case is interlocutory but defendant contends it is immediately appealable because it affects a substantial right. Our courts have defined a substantial right as one which will clearly be lost or irremediably adversely affected if the order is not reviewed before final judgment, Blackwelder v. Dept. of Human Resources, supra at 335, 299 S.E.2d at 780, and have interpreted the term narrowly. See Blackwelder, supra at 334 and the cases cited therein. Our courts have previously held that the avoidance of a rehearing or trial is not considered to be such a substantial right. See Tridyn Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979) and Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). Nor is there a right of immediate appeal from the refusal of a motion to dismiss because such refusal generally will not seriously impair any right of the defendant that cannot be corrected upon appeal from the final judgment. See Consumers Power v. Power Co., supra.

We do not agree that the interlocutory order here deprives the defendant of a substantial right which he would lose if the order is not reviewed prior to final judgment. Rather, we believe defendant is given adequate protection by his right to petition the appellate courts for a prerogative writ so as to obtain discretionary review prior to retrial. Defendant sought such discretionary review in the Supreme Court and the Court of Appeals but both Courts refused to exercise their discretion to review his claim. We believe defendant received all of the interlocutory review of his double jeopardy claim to which he was entitled. We hold that defendant's appeal from the court's order denying his motion to dismiss is premature and must be dismissed.

Appeal dismissed.

Chief Judge VAUGHN concurs.

Judge JOHNSON dissents.