Opinion
No. 8126SC421
Filed 17 November 1981
1. Criminal Law 149 — order suppressing evidence — appeal by State — time for filing prosecutor's certificate In order for the State to appeal a pretrial order allowing a motion to suppress evidence, the prosecutor's certificate required by G.S. 15A-979 (c) stating that the appeal is not taken for the purpose of delay and that the evidence is essential to the case must be submitted to the trial judge within the ten-day period the case remains viable for appeal under G.S. 15A-1448 (a)(1).
2. Criminal Law 148 — appeal of order denying motion to suppress Appellate review of an order which denies a motion to suppress may be had only after a judgment of conviction, including a judgment entered upon a plea of guilty. G.S. 15A-979 (b).
APPEAL by the State and cross-appeal by defendant from Johnson, Judge. Order dated 29 December 1980 entered in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 14 October 1981.
Attorney General Edmisten, by Assistant Attorney General Joan H. Byers, for the State-appellant.
Ellis M. Bragg for defendant-appellant.
Judge WEBB dissenting.
Defendant was indicted for the breaking and entering of a dwelling house with the intent to commit a felony and felonious larceny after breaking and entering. Prior to trial, defendant moved to suppress the identification testimony of Aleasia Mungo and Eddy Mungo on the grounds that he was illegally arrested and subjected to an unconstitutional identification procedure. After a hearing on the motion, the trial judge entered an order granting defendant's motion to suppress the identification testimony of Aleasia Mungo and denying the motion to suppress the identification testimony of Eddy Mungo.
The State has appealed from that part of the order granting defendant's motion to suppress. The defendant has cross-appealed from that part of the order denying his motion to suppress.
We dismiss the appeal by the State for lack of jurisdiction by this Court. The general rule is that the prosecution cannot appeal from a judgment in favor of a defendant in a criminal case in the absence of a statute clearly conferring that right. State v. Harrell, 279 N.C. 464, 183 S.E.2d 638 (1971); State v. Dobson, 51 N.C. App. 445, 276 S.E.2d 480 (1981). Statutes which authorize an appeal by the State must be strictly construed. State v. Harrell, supra.
N.C. G.S. 15A-1445 grants to the State the right to appeal an order allowing a motion to suppress evidence as provided in N.C. G.S. 15A-979. Subsection (c) of N.C. G.S. 15A-979 states as follows:
An order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case.
We believe that the above statutory provision must be read in conjunction with N.C. G.S. 15A-1448 (a)(1) providing that "[a] case remains open for the taking of an appeal to the appellate division for a period of ten days after the entry of judgment." Construed as a whole, these statutes mandate that the State pursue its right to appeal by submitting to the trial judge the certificate required by N.C. G.S. 15A-979 (c) within the time period the case remains viable for appeal under N.C. G.S. 15A-1448 (a)(1) or the order will not be held appealable. The legislature has accorded to the State a specific procedure for appeal of this particular type of order granting a motion to suppress prior to trial. The burden is on the State to demonstrate that it has fully complied with all statutory requirements. State v. Dobson, 51 N.C. App. 445, 276 S.E.2d 480 (1981).
In the case at hand the appeal entry states that the prosecution gave oral notice of appeal in open court on 9 December 1980. The record on appeal includes a document entitled "certification by prosecutor." Although we find nothing in error regarding the substance of this document, we note that the certificate, which is signed by the Attorney General on behalf of the District Attorney, is dated 16 February 1981 and bears no indication that it was either filed in the clerk's office of Mecklenburg County or actually submitted to the trial judge in apt time. Because of the State's failure to properly perfect its appeal, we find that this appeal is not authorized by statute and our court has no jurisdiction. The appeal must be dismissed.
We also find that this Court lacks jurisdiction to hear the appeal of defendant from that portion of the order denying his motion to suppress. Appellate review of an order which denies a motion to suppress may be had only after a judgment of conviction, including a judgment entered upon a plea of guilty. N.C. G.S. 15A-979 (b); State v. Grogan, 40 N.C. App. 371, 253 S.E.2d 20 (1979). Defendant's appeal is premature and must also be dismissed.
The appeal by the State is
Dismissed.
The appeal by the defendant is
Dismissed.
Judge WELLS concurs.
Judge WEBB dissents.