Opinion
No. COA10-834
Filed 19 April 2011 This case not for publication
Appeal by defendant from order entered 10 March 2010, nunc pro tunc 11 July 2008, by Judge John E. Nobles, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 10 January 2011.
Roy Cooper, Attorney General, by Kathryne E. Hathcock, Assistant Attorney General, for the State. Leslie S. Robinson, for defendant-appellant.
Pitt County No. 05 CRS 52250
This appeal is the third occasion on which the matter has been considered by this Court. See State v. Leskiw ( Leskiw II), 199 N.C. App. 756, 687 S.E.2d 541 (2009) (unpublished); State v. Leskiw ( Leskiw I), 186 N.C. App. 680, 652 S.E.2d 72 (2007) (unpublished). The present appeal is from the superior court's 10 March 2010 order reversing the district court's dismissal of the charge of driving while impaired and remanding to the district court for further proceedings. We affirm the superior court's order.
On 11 March 2005, defendant was stopped by Officer Michael Montanye of the Greenville Police Department. Officer Montanye conducted sobriety tests on defendant and checked the status of defendant's driver's license. The mobile data terminal in the police vehicle, which is connected with the Division of Motor Vehicles, reported that defendant's driver's license had been revoked for a thirty-day period as a result of defendant's conviction of a driving while impaired offense. Officer Montanye called the communications center to confirm the accuracy of this information, which reported that defendant "was signal 13" — the signal for someone with a revoked driver's license for a driving while impaired conviction. The record indicates that defendant was arrested on charges of failing to wear a seatbelt, driving while impaired, driving while license revoked, and displaying a license known to be revoked. Defendant's vehicle was seized and towed for forfeiture pursuant to N.C.G.S. § 20-28.3.
The only citation included in the record on appeal to this Court is defendant's citation for driving while impaired.
Following his arrest, it was determined that defendant had a valid driver's license at the time of the stop. During the 11 July 2008 hearing before the superior court, a deputy clerk with the clerk's office testified that, to retrieve a revoked driver's license, a defendant must obtain a bill of costs from the clerk's office and then go to the cashier's office and pay the revocation fee. She testified that it takes one to two days for the bill of costs to be returned to the clerk's office. After receiving the bill of costs, the clerk enters the information into the computer and the information is electronically filed with the Division of Motor Vehicles. Defendant had paid the revocation fee to have his driver's license reinstated and retrieved his driver's license from the clerk's office on 9 March 2005. Defendant's payment was entered into the computer system on 11 March 2005. The clerk testified that the Division of Motor Vehicles receives the information within twenty-four hours of its entry into the computer system.
In a Dismissal Notice of Reinstatement dated 9 June 2005, the State dismissed the charges of displaying a license known to be revoked and driving while license revoked for the reason that "Defendant's license was not revoked. Defendant had a valid license on 11 March 2005." Defendant testified that he was without his vehicle for about two weeks and the record indicates that, to retrieve his vehicle, he expended $950 on an attorney and $475 on towing and storage fees.
On or about 16 March 2006, defendant filed a motion to dismiss the charge of driving while impaired in Pitt County District Court. After hearing arguments of counsel, the district court entered an Order Granting Motion to Dismiss, in which it made findings of fact; concluded, in part, that "[d]efendant is entitled to an Order from the Court dismissing the charges of Driving While Impaired on the grounds of double jeopardy"; and dismissed the driving while impaired charge. The State filed a Motion to Appeal pursuant to N.C.G.S. § 15A-1432, requesting, in part, that the superior court "[f]ind that . . . [d]ismissal of th[e] charge was contrary to law," "[r]einstate the driving while impaired charge[,] and allow the State to try Defendant at the District Court level." After hearing arguments of counsel, the superior court entered an order reinstating defendant's charge of driving while impaired and remanding the matter to the district court for further proceedings. Defendant appealed to this Court. On 6 November 2007, in Leskiw I, this Court filed an unpublished opinion reversing the superior court's order and remanding to the superior court with instructions to conduct a de novo hearing.
The record does not indicate the disposition of the seatbelt violation.
On 11 July 2008, after hearing arguments of counsel, the superior court reasoned that dismissing defendant's driving while impaired charge on double jeopardy grounds would "really just . . . punish[] . . . the State [for] not behaving as [it] should [have]." The superior court expressed its unwillingness to uphold the dismissal of defendant's charge and, at the request of defendant, certified that the matter was appropriately justiciable in the appellate division as an interlocutory matter. On 15 September 2009, in Leskiw II, this Court filed a second unpublished opinion in the matter in which we dismissed defendant's appeal because, absent a judgment from the superior court, we were not permitted to review the matter.
On 10 March 2010, the superior court entered an order nunc pro tunc 11 July 2008. Its order concluded, in part, that "[t]he illegal seizure of defendant's vehicle does not constitute punishment prohibiting further prosecution of defendant for driving while impaired on the grounds of double jeopardy"; reversed the district court's dismissal; and remanded to the district court for further proceedings. On 1 April 2010, the superior court certified that the matter was appropriately justiciable in the appellate division as an interlocutory matter. Defendant appeals from the superior court's order.
Defendant's first argument is that his statutory rights under N.C.G.S. § 20-28.3 were violated. He contends that his vehicle was improperly seized under N.C.G.S. § 20-28.3 and asserts that he "has no remedy against anyone involved." Defendant's second argument asserts that because his vehicle was improperly seized, "double jeopardy prohibit[s] further prosecution" of the driving while impaired charge. Thus, he contends the superior court erred by reversing the district court's dismissal of the driving while impaired charge. Defendant's arguments are without merit.
Defendant's first argument fails to identify any purported error of the superior court for our review. In its order, the superior court concluded that "[d]efendant's vehicle was improperly seized, towed and stored under G.S. 20-28.3." Thus, defendant's first argument, that his vehicle was improperly seized, concedes the superior court's conclusion on this point.
In his second argument, defendant quotes the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, states that "Double Jeopardy `protects against multiple punishments for the same offense,'" and states that Article 1, Section 19 of the North Carolina Constitution "also prohibits multiple punishments." Defendant asserts that the improper seizure of his vehicle and the subsequent expenses he incurred "constitute punishment for purposes of double jeopardy analysis" and, therefore, "prosecution for the driving while impaired charge would constitute `multiple punishments' for the same offense." However, aside from his citation to broad legal principles, defendant fails to identify legal authority or provide legal argument supporting his contention that, under the circumstances of his case, the State's prosecution of the driving while impaired charge would violate the Double Jeopardy Clause. See N.C.R. App. P. 28(b)(6) ("The body of the argument . . . shall contain citations of the authorities upon which the appellant relies."). "It is not the role of the appellate courts . . . to create an appeal for an appellant." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005). Accordingly, the superior court did not err by reversing the district court's dismissal of defendant's charge of driving while impaired.
Affirmed.
Judges HUNTER and THIGPEN concur.
Report per Rule 30(e).