Opinion
No. COA12–368.
2012-11-6
STATE Of North Carolina v. Timothy C. AUTRY, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant appellant.
Appeal by defendant from order entered 1 November 2011 by Judge Paul L. Jones in Sampson County Superior Court. Heard in the Court of Appeals 22 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant appellant.
McCULLOUGH, Judge.
Timothy C. Autry (“defendant”) appeals from the trial court's order denying defendant's motion for post-conviction DNA testing, and argues the trial court lacked subject matter jurisdiction to enter the order. We affirm.
The relevant procedural history is as follows. On 25 March 1986, defendant was convicted by a jury of three counts of first-degree sex offense, two counts of first-degree rape, one count of first-degree kidnapping, two counts of second-degree sex offense, one count of second-degree rape, and one count of impersonating a law enforcement officer. He was sentenced to five life sentences plus an additional 106 years. Defendant appealed, his motion to bypass this Court was allowed, and the Supreme Court issued an opinion finding no error. State v. Autry, 321 N.C. 392, 364 S.E .2d 341 (1988).
On 20 August 2002, defendant filed a request for DNA testing, which was allowed on 31 March 2004. After the testing was conducted, a hearing was held on the matter on 31 January 2008. At that time, the trial court determined that no showing had been made that the DNA results were favorable to defendant, and denied his request for post-conviction relief.
Defendant filed a second motion for DNA testing on 3 November 2008. The trial court denied the motion by order entered 12 October 2010. Defendant appealed, and this Court found no error in an opinion filed on 6 September 2011. State v. Autry, ––– N.C.App. ––––, 716 S.E.2d 89 (2011) (unpublished). The mandate from this Court was issued on 26 September 2011.
On 19 September 2011, defendant filed a third request for post-conviction DNA testing. The State filed a motion seeking to prevent defendant from filing further motions for DNA testing. The matter came on to be heard on 31 October 2011. On 1 November 2011, the trial court entered an order denying the motion and prohibiting defendant from filing further similar motions without a certification by an attorney that a good faith basis exists for requesting relief. From the order entered, defendant appeals.
Defendant argues the trial court lacked subject matter jurisdiction to enter its order since defendant prematurely filed his motion in the trial court before this Court's mandate issued from the prior appeal. He contends the trial court's order is a nullity and must be vacated. We disagree.
When a party appeals from an order or judgment in the trial court, the trial court is divested of jurisdiction over the case. N .C. Gen.Stat. § 15A–1448 (a)(3) (2011); see also State v. Davis, 123 N.C.App. 240, 242, 472 S.E.2d 392, 393 (1996). Jurisdiction returns to the trial court only when “the case is returned by mandate of the appellate court.” Woodard v. Local Governmental Employees' Retirement Sys., 110 N.C.App. 83, 85, 428 S.E.2d 849, 850 (1993). In the instant case, the mandate was issued from this Court on 26 September 2011. The trial court did not conduct a hearing or enter its order until well after the mandate issued; therefore, the trial court had jurisdiction when it entered its ruling denying defendant's third request for DNA testing.
Defendant argues that his filing of the motion before the mandate issued from this Court somehow prevented the trial court from acquiring any jurisdiction over the matter. We are not persuaded by this argument. Pursuant to statute, the proper venue for filing a motion for post-conviction DNA testing is in the trial court. N.C. Gen.Stat. § 15A–269(a) (2011). Thus, the trial court is the only place where defendant could have filed his motion for post-conviction DNA testing. Although the trial court was divested of jurisdiction while defendant's appeal was pending in this Court, the trial court had the jurisdiction to rule on defendant's new motion once the mandate issued from this Court, and its ruling is therefore valid and proper. Defendant's arguments are overruled.
Affirmed. Judges HUNTER (ROBERT C.) and CALABRIA concur.
Report per Rule 30(e).