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Indictment and Information_motion to suppress before indictment_no jurisdiction
The denial of a motion to suppress was void where the motion was filed and heard before
defendant was indicted or waived indictment. Both the State Constitution and the Criminal
Procedure Act require an indictment or waiver for a superior court to have jurisdiction in a
criminal case. The fact that defendant filed the motion and participated in the suppression hearing
did not give the court jurisdiction.
Attorney General Roy Cooper, by Assistant Attorney General Amy
L. Yonowitz, for the State.
Morrow Alexander Tash Kurtz & Porter, by Benjamin D. Porter, for defendant-appellant.
Defendant appeals from judgments entered upon his pleas of guilty to three counts of third degree sexual exploitation of a minor. As a condition of his plea, defendant reserved the right to appeal, pursuant to G.S. § 15A-979(b), the superior court's denial of his motion to suppress all evidence obtained during a search of his residence on 25 May 2001. The search was conducted pursuant to a search warrant and several items of child pornography were seized from defendant's home.
Defendant was charged in a warrant with three counts of third degree sexual exploitation of a minor on 17 June 2001. On 21 December 2001, defendant filed the motion to suppress the evidence seized during the search of his home. The motion was calendared bythe State and was heard on 14 February 2002. At the time the motion to suppress was heard, there had not been any true bills of indictment returned by the grand jury charging defendant with any offense related to the evidence which defendant sought to suppress. At the conclusion of the hearing, the trial court denied the motion to suppress. On 22 March 2002, the prosecutor signed a bill of information alleging defendant had committed three counts of third degree sexual exploitation of a minor, and defendant and his attorney signed a waiver of indictment, allowing the case to proceed on the bill of information. On the same date, defendant entered pleas of guilty to the three offenses and was sentenced by the court.
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