Opinion
No. COA11-517
Filed 15 November 2011 This case not for publication
Appeal by Defendant from order entered 10 November 2010 by Judge Richard L. Doughton in Wilkes County Superior Court. Heard in the Court of Appeals 27 October 2011.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Charlotte Gail Blake, for Defendant-appellant.
Wilkes County No. 09-CRS 1501-1536.
Frederick Wells Brason, III ("Defendant") was indicted on 27 July 2009 for one count of disseminating obscenity to a minor, five counts of attempted first degree sexual offense with a child, five counts of indecent liberties, and 30 counts of second degree sexual exploitation of a minor. Defendant filed a pretrial motion to suppress all evidence obtained based on an allegedly unconstitutional and illegal search of his home. The trial court denied Defendant's motion to suppress after a hearing on 10 November 2010. Defendant pled guilty on all counts pursuant to a plea agreement on 15 November 2010. The plea agreement noted Defendant's intention to appeal the trial court's denial of his motion to suppress. Defendant also gave oral notice of his intent to appeal the denial of his motion to suppress at the conclusion of the sentencing hearing. Defendant did not appeal from his final judgment. Defendant filed a petition for writ of certiorari with this Court on 7 October 2011.
This Court recently addressed this precise issue in State v. Miller, ___ N.C. App. ___, 696 S.E.2d 542 (2010). 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. Id. at ___, 696 S.E.2d at 543. As this Court stated in State v. McBride, 120 N.C. App. 623, 626, 463 S.E.2d 403, 405 (1995), "[t]he two forms of notice serve different functions, and performance of one does not substitute for completion of the other." In another recent decision, this Court held that because "defendant [] only appealed from the denial of his motion to suppress, and not from his final judgment, we have no jurisdiction to hear this appeal." State v. Taylor, ___ N.C. App. ___, 694 S.E.2d 522 (2010) (unpublished opinion); accord State v. Turner, 305 N.C. 356, 289 S.E.2d 368 (1982); and State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). For these reasons, this Court does not have jurisdiction to hear Defendant's appeal. Defendant's subsequent petition for certiorari is dismissed.
Dismissed.
Judges THIGPEN and MCCULLOUGH concur.
Report 30(e).