Opinion
NO. COA12-264
10-16-2012
STATE OF NORTH CAROLINA v. MATTHEW ALLEN BARNHILL
Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State. Unti & Lumsden LLP, by Sharon L. Smith, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Randolph County
Nos. 09 CRS 56732-33
Appeal by Defendant from judgment entered 24 October 2011 by Judge Edgar B. Gregory in Randolph County Superior Court. Heard in the Court of Appeals 8 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for Defendant.
STEPHENS, Judge.
On 12 April 2010, Defendant Matthew Allen Barnhill was indicted on one count each of felonious simple possession of marijuana and possession with intent to manufacture, sell, or deliver marijuana. On 24 February 2011, Defendant moved to suppress evidence obtained through a warrantless search of his home. Defendant's motion was denied on 3 March 2011. Defendant then entered a guilty plea to felonious possession of marijuana on 24 October 2011, and the State dismissed the possession with intent to manufacture, sell, or deliver charge. The court entered judgment pursuant to Defendant's plea, sentenced him to a suspended term of five to six months imprisonment, and placed him on supervised probation for 18 months. Defendant appeals, arguing that the denial of his motion to suppress was erroneous.
"An order . . . denying a motion to suppress evidence may be reviewed upon an appeal from . . . a judgment entered upon a plea of guilty." N.C. Gen. Stat. § 15A-979(b) (2011). However, a defendant must (1) notify the prosecutor and the court of his intent to appeal during plea negotiations and (2) provide notice of appeal from the final judgment. State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), affirmed per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).
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. . . . The two forms of notice serve different functions, and performance of one does not substitute for completion of the other.State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010) (citations and quotation marks omitted) (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).
Here, as in Miller, Defendant preserved his right to appeal from the denial of his motion to suppress as specifically stated in the written plea arrangement entered into with the State. However, at the close of the plea hearing, Defendant gave notice of appeal only "of the denial of the Motion to Suppress[,]" and did not give notice of appeal from the judgment entered. Having failed to appeal from his final judgment as required by section 15A-979(b), Defendant's appeal must be
DISMISSED.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).