An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-903


Filed: 4 May 2004


         v.                        Rutherford County
                                No. 98 CRS 1919
JAMES RICHARD HELTON                 

    Appeal by defendant from judgment entered 18 November 1998 by Judge Zoro J. Guice, Jr. in Superior Court, Rutherford County. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    Bryan Gates for defendant-appellant.

    McGEE, Judge.

    A warrant was issued on 20 August 1996 for the arrest of defendant James Richard Helton for driving while impaired. Defendant was arrested on 5 March 1998. Although the charge for driving while impaired was a misdemeanor, the case was transferred to superior court because there was a related felony charge of assault with a deadly weapon on a government official. Defendant was acquitted on the assault charge on 18 November 1998 but was convicted for driving while impaired and sentenced to one year in prison. Defendant's sentence was suspended and he was placed on supervised probation for thirty-six months. Defendant appeals.
    The State filed a motion to dismiss defendant's appeal on 29May 2002. The trial court denied the motion and appointed the appellate defender to perfect defendant's appeal.
    The State filed a motion to dismiss defendant's appeal in this Court on 30 October 2003 for failure to include a copy of the indictment in the record on appeal. Defendant filed a motion for appropriate relief on 16 January 2004, asking that his conviction be vacated. In his motion, defendant states there was no indictment, information or waiver in the trial court file. Defendant therefore argues in his motion that the failure of the State to obtain an indictment for the driving while impaired conviction deprived the trial court of jurisdiction to try that case. We agree.
    "Article I, section 12, of the North Carolina Constitution requires an indictment, unless waived, for all criminal actions originating in Superior Court." State v. Neville, 108 N.C. App. 330, 332, 423 S.E.2d 496, 497 (1992). In the case before us, the State concedes that there was not an indictment for driving while impaired. Because there was no indictment for driving while impaired, the Superior Court did not have jurisdiction to try the defendant. Accordingly, the motion for appropriate relief is allowed. We therefore need not determine defendant's sole assignment of error challenging the trial court's findings in imposing supervised probation. Defendant's conviction is vacated and this matter is remanded.
    Vacated and remanded.
    Chief Judge MARTIN and Judge BRYANT concur.    Report per Rule 30(e).

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