Courts--district court convictions--correction of clerical errors--appeal to superior court--
untimeliness
In a case involving defendant's purported appeal to the superior court of his convictions
in the district court for attempted simple assault, simple assault, and communicating threats, the
superior court's order is vacated and remanded because the superior court did not have
jurisdiction in this case and should have dismissed defendant's appeal since: (1) the district
court's original judgment was entered on 22 September 1997; (2) defendant appealed the
conviction on 2 October 1997, meeting the ten-day requirement under N.C.G.S. § 7A-290, but
withdrew his appeal on 3 October 1997; (3) the district court's correction of clerical errors in the
judgment on 10 March 1998 did not constitute a new judgment; and (4) defendant's purported
appeal of 10 March 1998 pursuant to N.C.G.S. § 7A-290 was not timely since it was not made
within ten days of the judgment on 22 September 1997.
Attorney General Michael F. Easley, by Associate Attorney
General Christopher W. Brooks, for the State.
Kelly & Kelly, by George E. Kelly, III, for defendant-
appellant.
HUNTER, Judge.
Walter Linemann (“defendant”) appeals the order of the
superior court wherein it granted the State's motion for
appropriate relief. We vacate on the basis that the superior court
did not have jurisdiction.
First, we note that defendant does not have a right to appeal
from the order of the superior court to this Court. Article 91 of
the North Carolina General Statutes, entitled “Appeal to Appellate
Division,” indicates when a defendant in a criminal action may
appeal to the appellate division. It provides that “[t]he rulingof the court upon a motion for appropriate relief is subject to
review upon appeal or by writ of certiorari as provided in G.S.
15A-1422.” N.C. Gen. Stat. § 15A-1444(f) (1997). While N.C. Gen.
Stat. § 15A-1422 (1997) indicates that a defendant, in certain
instances, may appeal the denial of his own motion for appropriate
relief, it gives no indication that a defendant may appeal the
granting of the State's motion for appropriate relief as is the
case here. Defendant's purported appeal to this Court is therefore
subject to dismissal. However, we elect to treat his attempt to
appeal as a petition for writ of certiorari and grant that
petition.
Briefly, the facts relevant to this appeal indicate that
defendant was found guilty in Wake County District Court on 22
September 1997 for attempted simple assault, simple assault and
communicating threats. On that same day, District Court Judge
James R. Fullwood consolidated the sentences for these convictions
to a term of 45 days, which was suspended and defendant was placed
on supervised probation for 12 months. On the sentencing form,
each of the convictions was listed as a “Class 1” offense,
defendant's race was listed as “W,” and under “special conditions,”
the judge had required defendant to “report to probation officer
when released from active sentence in 97CR 33161 [an unrelated
charge] which is on appeal.” Defendant entered a notice of appeal
from these convictions to the Wake County Superior Court for a
trial de novo on 2 October 1997, but withdrew said notice on 3
October 1997.
On or about 9 December 1997, defendant filed a motion forappropriate relief with the Wake County District Court pursuant to
N.C. Gen. Stat. § 15A-1415(b) and N.C. Gen. Stat. § 15A-1419(b).
In his motion, defendant alleged certain errors in the judgment,
that the judgment was in violation of his North Carolina and United
States Constitutional rights, and that he did not waive his right
to a jury trial. Defendant's hearing on his motion was heard on 10
March 1998 and that same day Judge Fullwood corrected the errors
cited by defendant by amending the judgment as follows: (1)
labeling the defendant's race as “H” instead of “W”; (2) labeling
the attempted simple assault conviction as a Class 3 misdemeanor
instead of a Class 1 misdemeanor; (3) labeling the simple assault
conviction as a Class 2 misdemeanor instead of a Class 1
misdemeanor; and (4) striking the language that read “report to
probation officer when released from active sentence in 97CR 33161
which is on appeal” because defendant had subsequently been found
not guilty in superior court of that unrelated charge. Judge
Fullwood did not grant any other portion of defendant's motion.
Defendant filed a notice of appeal of his conviction to Wake County
Superior Court on that same date. His case was calendered for
superior court on 27 April 1998. The record is unclear as to
whether the superior court considered his appeal on that date.
On or about 30 April 1998, the State filed a “Motion For
Appropriate Relief” in Wake County Superior Court wherein it
requested that the superior court dismiss defendant's appeal and
remand his case to the district court for lack of jurisdiction
based on an untimely appeal, or reverse the district court's
allowance of defendant's motion for appropriate relief. SuperiorCourt Judge Robert Farmer ruled on the State's motion on 12 May
1998 and concluded that “[t]he district court judge did not havethe authority, in granting the motion for appropriate relief, to
set aside the original judgment and enter a new judgment without a
new trial in district court.” Judge Farmer ordered that the
district court's order of 10 March 1998, allowing defendant's
motion for appropriate relief, be overturned. Defendant appeals.
Defendant contends that the superior court erred in allowing
the State's motion for appropriate relief because it lacked
authority to do so under N.C. Gen. Stat. § 15A-1416. This statute
states:
(a) After the verdict but not more than
10 days after entry of judgment, the State by
motion may seek appropriate relief for any
error which it may assert upon appeal.
(b) At any time after verdict the State
may make a motion for appropriate relief for:
(1) The imposition of sentence when
prayer for judgment has been
continued and grounds for the
imposition of sentence are
asserted.
(2) The initiation of any
proceeding authorized under
Article 82, Probation; Article
83, Imprisonment; and Article
84, Fines, with regard to the
modification of sentences. The
procedural provisions of those
Articles are controlling.
N.C. Gen. Stat. § 15A-1416 (1997). Defendant argues that the State
did not meet the ten-day deadline enunciated in § 15A-1416(a);
therefore, the superior court lacked jurisdiction. The State
agrees that it did not make the motion within the required ten-day
period, but argues that the superior court lacked jurisdiction
because defendant had no right to appeal the “amended judgment” of10 March 1998. Therefore, the State contends, although captioned
“Motion For Appropriate Relief,” its motion should have been
treated as a motion to dismiss because the State asked for this
relief in the motion. We find the State's argument persuasive.
The record reveals that a new verdict or judgment was not
rendered on 10 March 1998. As the superior court found, the
district court only corrected clerical errors in the 22 September
1997 judgment on 10 March 1998, marking them “amended.” Although
defendant brought these misstatements to the court's attention in
his motion for appropriate relief, the court's action did not
change the substance of defendant's judgment and sentence. The
court did not grant defendant a new trial or modify his sentence
pursuant to Article 89 of the North Carolina General Statutes,
entitled “Motion for Appropriate Relief and Other Post-Trial
Relief.” The court here merely made the statements in the judgment
and sentencing sheet “speak the truth.” “It is universally
recognized that a court of record has the inherent power and duty
to make its records speak the truth.” State v. Cannon, 244 N.C.
399, 403, 94 S.E.2d 339, 342 (1956). When the trial court has
corrected a clerical error in a judgment and commitment form, which
had erroneously listed the class of the crime, the defendant is not
entitled to a new sentencing hearing. State v. Hammond, 307 N.C.
662, 669, 300 S.E.2d 361, 365 (1983). Such action by the court in
the present case related nunc pro tunc to the original judgment of
22 September 1997. See State v. Cannon, 244 N.C. at 406, 94 S.E.2d
at 344 (“[i]t follows that the record in this case, as amendedstands as if it had never been defective, or as if the entries had
been made at the proper term”). Thus, the correction of a clerical
error in a judgment does not constitute a new conviction or
judgment.
According to defendant's purported appeal of 10 March 1998, he
was appealing his “conviction” for a trial de novo. Defendant in
no way indicated in the appeal filed on 10 March 1998 with the
superior court, and does not contend in the present appeal to this
Court, that he was attempting on 10 March 1998 to appeal the
partial denial of his motion for appropriate relief. Therefore, we
do not address whether such appeal would be proper in the superior
court. Accordingly, we focus our inquiry on whether or not the
superior court had jurisdiction over defendant's purported appeal
of his conviction.
We note that “[a] defendant convicted in the district court
before the judge may appeal to the superior court for trial de novo
with a jury as provided by law.” N.C. Gen. Stat. § 15A-1431(b)
(1997). “Any defendant convicted in district court before the
judge may appeal to the superior court for trial de novo. Notice
of appeal may be given orally in open court, or to the clerk in
writing within 10 days of entry of judgment.” N.C. Gen. Stat. §
7A-290 (1995). “For the purpose of imposing sentence, a person has
been convicted when he has been adjudged guilty or has entered a
plea of guilty or no contest.” N.C. Gen. Stat. § 15A-1331(b)
(1997). Defendant in the present case was adjudged guilty and
judgment entered on 22 September 1997. He appealed that convictionon 2 October 1997, meeting the ten-day requirement under N.C. Gen.
Stat. § 7A-290. However, defendant withdrew his appeal on 3
October 1997. We have held that the district court's correction of
clerical errors in the judgment on 10 March 1998 did not constitute
a new judgment. Thus, defendant's purported appeal of 10 March
1998 pursuant to N.C. Gen. Stat. § 7A-290 was not timely as it was
not made within 10 days of 22 September 1997.
N.C. Gen. Stat. § 7A-271, entitled “Jurisdiction of superior
court,” states: “(b) Appeals by the State or the defendant from
the district court are to the superior court. The jurisdiction of
the superior court over misdemeanors appealed from the district
court to the superior court for trial de novo is the same as the
district court had in the first instance[] . . . .” N.C. Gen.
Stat. § 7A-271(b) (1995). Therefore, the superior court only gains
jurisdiction over misdemeanors tried in district court when the
defendant properly appeals. If a petitioner fails to perfect his
appeal by giving timely notice of appeal from the lower court as
required by statute, the superior court is without jurisdiction to
review the ruling. Mechanic Construction v. Haywood, 56 N.C. App.
464, 465, 289 S.E.2d 134, 134 (1982) (citing Spaulding Division of
Questors Corp. v. DuBose, 46 N.C. App. 612, 265 S.E.2d 501, cert.
denied, 300 N.C. 375, 267 S.E.2d 678 (1980)). Because defendant in
the present case did not meet the ten-day requirement of N.C. Gen.
Stat. § 7A-290, he did not properly perfect his appeal. Therefore,
the superior court lacked jurisdiction in the present case for a
trial de novo. If a court finds at any stage of the proceedings that it lacks
jurisdiction over the subject matter of a case, it must dismiss the
case for want of jurisdiction. Burgess v. Gibbs, 262 N.C. 462,
465, 137 S.E.2d 806, 808 (1964). Because the superior court did
not have jurisdiction in defendant's case, it should have dismissed
defendant's appeal upon the State's motion. Accordingly, we vacate
the order of superior court and remand this case to the superior
court for entry of an order dismissing defendant's appeal.
Vacated and remanded.
Judges GREENE and WALKER concur.
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