Opinion
No. COA10-797
Filed 15 February 2011 This case not for publication
Appeal by Defendant from judgment entered 17 February 2010 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler IV, for the State. Kimberly P. Hoppin for Defendant.
Mecklenburg County Nos. 08 CRS 50004, 50006.
On 28 January 2009, Defendant James William Jacobs was convicted by a jury of breaking or entering a motor vehicle and of having attained habitual felon status. The trial court sentenced Defendant as a Class C, Level VI felon to a term of 160 to 201 months imprisonment. Defendant appealed.
On 2 February 2010, this Court issued an opinion finding no error as to the evidentiary issues raised by Defendant on appeal but remanding the matter for resentencing where the State failed to sufficiently prove Defendant's prior convictions and prior record level. State v. Jacobs, ___ N.C. App. ___, 688 S.E.2d 112, disc. review denied, 364 N.C. 328, ___ S.E.2d ___ (2010).
The matter came on for resentencing before Judge Richard D. Boner in Mecklenburg County Superior Court on 17 February 2010. The trial court found that Defendant had 34 prior record level points and was a Level VI felon. Defendant was sentenced to a term of 160 to 201 months imprisonment. Defendant appeals.
Defendant argues, and the State concedes, that the trial court did not have subject matter jurisdiction when the resentencing hearing was held. We agree.
"[W]hen a court of the appellate division files an opinion, that court's `clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk.'" State v. Dorton, 182 N.C. App. 34, 38, 641 S.E.2d 357, 360 (quoting N.C. R. App. P. 32(b)), disc. review denied, 361 N.C. 571, 651 S.E.2d 225 (2007). "An appeal removes a case from the trial court which is thereafter without jurisdiction to proceed on the matter until the case is returned by mandate of the appellate court." Woodard v. N.C. Local Governmental Employees' Retirement Sys., 110 N.C. App. 83, 85, 428 S.E.2d 849, 850 (1993).
In the instant case, this Court issued its written opinion in Jacobs, ___ N.C. App. ___, 688 S.E.2d 112, on 2 February 2010. This Court's mandate did not issue until 22 February 2010, 20 days afer the opinion had been issued. Therefore, when the trial court held the resentencing hearing on 17 February 2010, the trial court lacked subject matter jurisdiction. Accordingly, we vacate and remand for resentencing.
VACATED and REMANDED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).