Summary
dismissing an appeal where the defendant failed to ask for certiorari in accordance with Rule 21
Summary of this case from State v. ScottOpinion
No. COA09-1151
Filed 3 August 2010
Appeal by defendant from order entered on or about 26 March 2009 by Judge Charles H. Henry in Superior Court, Onslow County. Heard in the Court of Appeals 25 February 2010.
Attorney General Roy A. Cooper, III, by Assistant Attorney General J. Philip Allen, for the State. Greene Wilson, P.A., by Thomas Reston Wilson, for defendant-appellant.
Onslow County No. 06CRS53923.
On or about 2 March 2007, Theron Inman ("defendant") pleaded guilty to ten counts of indecent liberties with a child. On or about 29 August 2007, defendant received a suspended sentence of sixty months of supervised probation for every two counts of indecent liberties with a child; in other words, defendant received a total of 300 months of supervised probation. On or about 26 March 2009, the trial court concluded that defendant had committed an aggravated offense and ordered defendant to enroll in satellite-based monitoring ("SBM") for life. Defendant appeals the order requiring him to enroll in SBM. However, the record contains no written notice of appeal. Pursuant to our holding set forth in State v. Brooks, ___ N.C. App. ___, ___, 693 S.E.2d 204, 206 (2010), we are bound to dismiss the case sub judice. In Brooks, we explained as follows:
In light of our decisions interpreting an SBM hearing as not being a criminal trial or proceeding for purposes of appeal, we must hold that oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court. Instead, a defendant must give notice of appeal pursuant to N.C.R.App. P. 3(a) as is proper in a civil action or special proceeding. N.C.R.App. P. 3(a) requires that a party file notice of appeal with the clerk of superior court and serve copies thereof upon all other parties. Because the record on appeal does not contain a written notice of appeal filed with the clerk of superior court, which was served upon the State, this appeal must be dismissed.
Id. (emphasis added) (internal citations, quotation marks, and brackets omitted). See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").
Although we acknowledge the proposition that "[t]his Court does have the authority pursuant to North Carolina Rule of Appellate Procedure 21(a)(1) to `treat the purported appeal as a petition for writ of certiorari,'" which we may exercise in our discretion, we decline to treat defendant's attempted appeal as a petition for writ of certiorari. Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008) (declining to treat the plaintiff's defective notice of appeal — naming for review only one summary judgment order — as a petition for writ of certiorari to review two summary judgment orders) (quoting State v. SanMiguel, 74 N.C. App. 276, 277-78, 328 S.E.2d 326, 328 (1985)). Appellate Rule 21 provides that a "writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists. . . ." N.C. R. App. P. 21(a)(1) (2007). However, a petition for writ of certiorari must be filed "with the clerk of the court of the appellate division to which appeal of right might lie[,]" and the petition must contain "a statement of the reasons why the writ should issue[.]" N.C. R. App. P. 21(b), (c) (2007). See State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321 (2005) (declining to treat the defendant's brief as a petition for writ of certiorari because of the requirements of Rule 21, notwithstanding the defendant's request to do so in a footnote). Defendant's brief does not contain the requisite documentation to meet the requirements set forth by our Appellate Rules for consideration of a writ of certiorari. Accordingly, we decline to consider the merits in the case sub judice.
For the foregoing reasons, we dismiss.
Dismissed.
Judge ELMORE concurs.
Judge STROUD dissents in a separate opinion.