Appeal and Error--appealability--order reinstating dismissed charge--interlocutory order
A defendant's appeal from the superior court's order reinstating the dismissed charge of
assault on a female in violation of N.C.G.S. § 14-33(c)(2) and remanding the case to district court
to be tried on the merits is dismissed because: (1) the order is interlocutory; and (2) although
there is a statutory exception for interlocutory criminal appeals under N.C.G.S. § 15A-1432(d),
there is nothing in the record to show that defendant or his attorney certified to the superior court
that the appeal was not being taken for the purpose of delay, nor does the superior court's order
reflect that it found defendant's cause was appropriately justiciable in the appellate division as an
interlocutory matter.
Attorney General Michael F. Easley, by Associate Attorney
General Christopher W. Brooks, for the State.
The Law Firm of J. Richardson Rudisill, Jr., by John M. Lewis,
for defendant-appellant.
HUNTER, Judge.
Kenneth Forrest Nichols (“defendant”) appeals the superior
court's order, reinstating the dismissed charge of assault on a
female against him, on the basis that the statute allegedly
violated is unconstitutional under the Equal Protection Clause of
the 14th Amendment to the United States Constitution. Because the
superior court's order is interlocutory and defendant has failed to
meet the statutory requirements for appealing the interlocutory
criminal order, we dismiss defendant's appeal and thus remand the
case to the district court for trial.
In its brief to this Court, the State objects to defendant'sstatement of facts “because such a statement is no
t based on the
record as it now stands[,]” due to the fact that defendant's case
has not been tried on the merits. We find that the underlying
facts regarding how defendant came to be charged with assault on a
female are insignificant to the determination of his appeal.
Therefore, we deal only with the issue at hand and the facts
pertinent to that issue. On 23 February 1999, defendant was
charged with assault on a female in violation of N.C. Gen. Stat. §
14-33(c)(2) (1999). In response, defendant's counsel filed a
motion in district court to dismiss on the grounds that the statute
was unconstitutional on its face because it deprived defendant of
equal protection under the law by “providing additional protection
for the females of this State.” On 15 April 1999 following a
hearing on defendant's motion, Catawba County District Court Judge
Robert M. Brady allowed defendant's motion to dismiss and entered
an order quashing the misdemeanor warrant against defendant,
finding that the statute is facially unconstitutional. The State
appealed to the superior court. On 29 September 1999 following a
hearing on the matter, Superior Court Judge James U. Downs entered
an order overruling the district court's finding that the statute
is unconstitutional on its face. Judge Downs reinstated the chargeagainst defendant and remanded the case back to the district court
for trial. Defendant appeals.
The issue before this Court is whether the superior court
committed reversible error by overruling the district court's order
and finding that N.C. Gen. Stat. § 14-33(c)(2) does not violate the
Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution. However, we do not reach the merits of
defendant's claim because we must grant the State's motion to
dismiss on the grounds that defendant's appeal is interlocutory.
“[A]n order is interlocutory if it does not determine the
issues in an action, but instead merely directs some further
proceeding preliminary to the final decree.” Collins v. Talley,
135 N.C. App. 758, 759, 522 S.E.2d 794, 796 (1999). Additionally,
“[t]he right to appeal in a criminal proceeding is purely
statutory. Generally, there is no right to appeal in a criminal
case except from a conviction or upon a plea of guilty.” State v.
Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876, appeal
dismissed and disc. review allowed in part, 340 N.C. 572, 460
S.E.2d 328 (1995), aff'd, 342 N.C. 638, 466 S.E.2d 277 (1996)
(citation omitted). Thus, in the case sub judice, where the
superior court reinstated the charge against defendant and remanded
the case back to the district court to be tried on the merits,
defendant's appeal is interlocutory because it is not from a final
judgment against him. Therefore, in order for this Court to review
the merits of defendant's appeal, we must find that defendant has
a statutory right to be here. Id. (See also, State v. Black, 7N.C. App. 324, 328, 172 S.E.2d 217, 219-20 (1970)). However
, we do
not so find.
In response to the State's motion to dismiss, defendant argues
that his appeal falls under an exception pursuant to N.C. Gen.
Stat. § 15A-1432(d) (1999). Thus, defendant contends that his
appeal is properly before this Court. We agree that there is a
statutory exception for interlocutory criminal appeals under N.C.
Gen. Stat. § 15A-1432(d) (1999) which reads:
(d) If the superior court finds that a
judgment, ruling, or order dismissing criminal
charges in the district court was in error, it
must reinstate the charges and remand the
matter to district court for further
proceedings. The defendant may appeal this
order to the appellate division as in the case
of other orders of the superior court,
including by an interlocutory appeal if the
defendant, or his attorney, certifies to the
superior court judge who entered the order
that the appeal is not taken for the purpose
of delay and if the judge finds the cause is
appropriately justiciable in the appellate
division as an interlocutory matter.
Id. (emphasis added). Therefore, if the record before us reflects
that defendant met the requirements for appealing under the
statute, defendant would be correct that his appeal is properly
before this Court. However, the record does not so reflect. In
fact, there is nothing in the record before this Court to show that
“defendant, or his attorney, certifie[d] to the superior court
. . . that the appeal [wa]s not [being] taken for the purpose of
delay . . . .” Id. Neither does the superior court's order
reflect that it found defendant's cause was “appropriatelyjusticiable in the appellate division as an interlocutory matter.”
Id.
Therefore, since defendant has not met the statutory
requirements for bringing his interlocutory appeal before this
Court, the appeal is dismissed. Defendant's alternative request
that his appeal be treated as a petition for writ of certiorari is
denied.
Dismissed.
Judges LEWIS and WYNN concur.
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