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State v. Miller

North Carolina Court of Appeals
Jul 1, 2010
696 S.E.2d 542 (N.C. Ct. App. 2010)

Summary

holding that the court lacked jurisdiction to hear the defendant's appeal of his judgment because the defendant appealed only the trial court's order denying his motion to suppress, not the trial court's final judgment

Summary of this case from State v. Robinson

Opinion

No. COA09-927

Filed 20 July 2010

Appeal by Defendant from order entered 5 March 2009 by Judge C. Phillip Ginn in Superior Court, Buncombe County. Heard in the Court of Appeals 23 February 2010.

Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State. Irving Joyner for Defendant-Appellant.


Buncombe County No. 08 CRS 55739.


Charles Thomas Miller (Defendant) was indicted on 1 December 2008 for possession of cocaine with the intent to sell or deliver. Defendant filed a pre-trial motion to suppress all evidence obtained after an allegedly illegal search and seizure. A suppression hearing was held on 3 March 2009 and the trial court denied Defendant's motion to suppress in an order signed 3 March 2009 and filed 5 March 2009. Defendant gave written notice of his intent to appeal the denial of his motion to suppress. Defendant then entered a guilty plea to a charge of possession of cocaine with the intent to distribute. Defendant did not give oral notice of appeal in open court at the time of his guilty plea. Defendant did file on 5 March 2009 a written notice of appeal "from the denial of Defendant's motion to suppress," but Defendant did not appeal from his judgment of conviction.

N.C. Gen. Stat. § 15A-979(b)(2009) states that: "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." Defendant has failed to appeal from the judgment of conviction and our Court does not have jurisdiction to consider Defendant's appeal. State v. Taylor, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2010 WL 1960851 (2010) (unpublished opinion) (dismissing appeal where the defendant preserved his right to appeal from denial of his motion to suppress but did not appeal from his judgment of conviction, holding "[a]s defendant has only appealed from the denial of his motion to suppress, and not from his final judgment, we have no jurisdiction to hear this appeal."); accord State v. Turner, 305 N.C. 356, 289 S.E.2d 368 (1982); and State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). "In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of state statute." State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404 (1995); see N.C. Gen. Stat. § 15A-1444 (2009). "Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a `fair posture for appeal from a guilty plea.' Notice of Appeal is a procedural appellate rule, required in order to give `this Court jurisdiction to hear and decide a case.'" McBride, 120 N.C. App. at 625, 463 S.E.2d at 405 (internal citations omitted) (emphasis in original); see also State v. Brown, 142 N.C. App. 491, 543 S.E.2d 192 (2001). Although Defendant preserved his right to appeal by filing his written notice of intent to appeal from the denial of his motion to suppress, he failed to appeal from his final judgment, as required by N.C.G.S. § 15A-979(b). "The two forms of notice serve different functions, and performance of one does not substitute for completion of the other." McBride, 120 N.C. App. at 626, 463 S.E.2d at 405.

Our Court therefore does not have jurisdiction to hear Defendant's appeal, and his appeal must be dismissed.

Dismissed.

Judges GEER and ERVIN concur.


Summaries of

State v. Miller

North Carolina Court of Appeals
Jul 1, 2010
696 S.E.2d 542 (N.C. Ct. App. 2010)

holding that the court lacked jurisdiction to hear the defendant's appeal of his judgment because the defendant appealed only the trial court's order denying his motion to suppress, not the trial court's final judgment

Summary of this case from State v. Robinson

Holding that we have no jurisdiction to hear the appeal “where the defendant preserved his right to appeal from denial of his motion to suppress but did not appeal from his judgment of conviction.”

Summary of this case from State v. Washington

holding that because the defendant did not appeal the final judgment of conviction, only the denial of his motion to suppress, the Court “d[id] not have jurisdiction to hear[d]efendant's appeal, and appeal must be dismissed”

Summary of this case from State v. Gaffney

holding this Court does not have jurisdiction, pursuant to N.C. Gen.Stat. § 15A–979(b) to review an order denying a motion to suppress if the notice of appeal fails to identify the final judgment subsequently entered

Summary of this case from State v. Williams

determining that jurisdiction does not switch to this Court when a notice of appeal is defective

Summary of this case from State v. Kirkman

dismissing appeal where defendant gave written notice of appeal "from the denial of Defendant's motion to suppress," but did not specify the judgment itself

Summary of this case from State v. San

dismissing a defendant's appeal for lack of jurisdiction where defendant gave notice of appeal from the denial of his motion to suppress but not from his judgment of conviction

Summary of this case from North Carolina v. Steele

dismissing a defendant's appeal for lack of jurisdiction where defendant gave notice of appeal from the denial of his motion to suppress but not from his judgment of conviction

Summary of this case from State v. Brown

dismissing appeal where defendant "preserved his right to appeal by filing [] written notice of intent to appeal from the denial of his motion to suppress, [but] failed to appeal from his final judgment, as required by N.C.G.S. § 15A-979(b)."

Summary of this case from State v. Pursley

dismissing appeal from order denying motion to suppress under N.C. Gen. Stat. § 15A-979(b) where the notice of appeal designated only the denial of Defendant's motion to suppress without also designating the final "judgment of conviction"

Summary of this case from In re A.G.

dismissing an appeal where the defendant gave written notice of his intent to appeal the denial of his motion to suppress, pled guilty to the charges against him, and filed a written notice of appeal from the denial of his motion to suppress, but did not appeal from his judgment of conviction

Summary of this case from State v. Watson

dismissing appeal where defendant noted his intent to appeal the denial of his motion to suppress prior to pleading guilty but failed to appeal from the trial court's final judgment

Summary of this case from State v. Curtis

dismissing appeal for lack of jurisdiction where the “[d]efendant did file ... a written notice of appeal from the denial of [the d]efendant's motion to suppress, but [the d]efendant did not appeal from his judgment of conviction”

Summary of this case from State v. Jackson

In Miller, 205 N.C.App. at 725–26, 696 S.E.2d at 543, this Court concluded that it did not have jurisdiction to consider the defendant's appeal pursuant to N.C. Gen.Stat. § 15A–979(b) because the defendant only appealed the denial of his motion to suppress, not his final judgment of conviction.

Summary of this case from State v. Coleman

dismissing a defendant's appeal for lack of jurisdiction where the defendant gave notice of appeal from the denial of his motion to suppress, but not from his judgment of conviction

Summary of this case from State v. Barnhill

stating that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.”

Summary of this case from State v. Thorpe

dismissing the defendant's appeal when he appealed the denial of his motion to suppress but did not give notice of appeal from the judgment of his conviction

Summary of this case from State v. Stemplinger

In Miller, analogous to the case at bar, this Court dismissed a defendant's appeal where the defendant preserved his right to appeal from a denial of his motion to suppress but did not appeal from his judgment of conviction.

Summary of this case from State v. Brason

In Miller, analogous to the case at bar, this Court dismissed a defendant's appeal where the defendant preserved his right to appeal from a denial of his motion to suppress but did not appeal from his judgment of conviction.

Summary of this case from State v. Brason
Case details for

State v. Miller

Case Details

Full title:STATE OF NORTH CAROLINA v. CHARLES THOMAS MILLER

Court:North Carolina Court of Appeals

Date published: Jul 1, 2010

Citations

696 S.E.2d 542 (N.C. Ct. App. 2010)

Citing Cases

State v. Lambert

” In State v. Miller, 205 N.C.App. 724, 696 S.E.2d 542 (2010), this Court addressed a similar situation in…

State v. Franklin

Although Defendant preserved his right to appeal by filing his written notice of intent to appeal from the…