An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-996

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

STATE OF NORTH CAROLINA

v .                         Robeson County
                            Nos. 02 CRS 018335,
DANIEL MILTON JACKSON            02 CRS 018336, 02 CRS 018337,
                            02 CRS 018338, 02 CRS 018339,
                            02 CRS 18340

    Appeal by defendant from judgment entered 6 May 2003 by Judge Jack A. Thompson in Robeson County Superior Court. Heard in the Court of Appeals 28 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Peter Wood, for defendant-appellant.

    TYSON, Judge.

    Daniel Milton Jackson (“defendant”) appeals from a judgment entered after he pled guilty to: (1) possession with intent to sell and deliver cocaine; (2) possession with intent to manufacture by repackaging cocaine; (3) possession with intent to sell and deliver marijuana; (4) possession with intent to manufacture by repackaging marijuana; (5) maintaining a drug dwelling; and (6) possession of drug paraphernalia. Defendant specifically reserved the right to appeal the dismissal of his motion to suppress. We affirm.

I. Background
    On 28 October 2002, sheriff deputies from the Robeson CountySheriff's Department went to defendant's home after receiving a tip that he was selling illegal drugs and trading illegal drugs for stolen property. Defendant was not present when the deputies arrived. Defendant's wife, Jane Baldwin Jackson (“Jackson”), was present and purportedly consented to a search of the premises. Jackson walked with the deputies as they searched the premises. Three large plastic bags containing marijuana were found buried in the yard. The officers also found over 300 grams of marijuana packaged in sixty-one smaller plastic bags. Over twenty-one grams of cocaine were found in a dish on the kitchen table. Various items of drug paraphernalia were also found, including plastic bags, digital scales, and PVC pipe.
    Defendant was charged with the six crimes listed above. On 19 February 2003, the State served defendant's attorney, Dianne Phillips (“Phillips”), with a discovery response which included notice of intent to use evidence obtained as a result of the search of defendant's home. However, Phillips had withdrawn as counsel for defendant on 19 November 2002. Copies of the notice were filed and placed in the official case file. On 24 March 2003, the State served defendant's new attorney, Carlton Mansfield (“Mansfield”), the discovery response and the notice of intent, along with a plea offer.
    On 4 April 2003, three days before he was scheduled to appear in court on 7 April 2003, defendant filed a motion to suppress the evidence obtained from the search of his home. The motion included an affidavit from Jackson denying she had consented to the search. At defendant's arraignment on 6 May 2003, the State orally moved to dismiss defendant's motion to suppress as untimely. The trial court granted the State's motion. The defendant entered into a plea agreement, pleaded guilty to all charges, and reserved the right to appeal the dismissal of his motion to suppress.
II. Issue
    The sole issue on appeal is whether the trial court erred in granting the State's motion to dismiss defendant's motion to suppress evidence obtained in the search of his home as untimely.
III. Motion to Suppress
    Defendant argues that the trial court should not have granted the State's motion to dismiss his motion to suppress. We disagree.
    The trial court found as a fact that “defendant's motion to suppress was not filed within 10 working days following receipt of the State's notice.” This finding supports the trial court's dismissal of defendant's motion to suppress. Defendant has not assigned error to the trial court's finding of fact and cannot challenge it on appeal. State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994) (citing Brown v. Board of Education, 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967)); see also State v. Perry, 316 N.C. 87, 107, 340 S.E.2d 450, 462 (1986). The sufficiency of the evidence to support the trial court's finding of fact that defendant's motion to suppress was untimely is not properly before this Court. This finding is binding upon appeal. See Watkins, 337 N.C. at 438, 446 S.E.2d at 68.
    Defendant argues that Mansfield, his substituted attorney, wasnot served with notice of the State's intent to use certain evidence at trial within twenty days pursuant to N.C. Gen. Stat. § 15A-976(b), and his motion to suppress made on 4 April 2004 was timely pursuant to N.C. Gen. Stat. § 15A-976(a).
    N.C. Gen. Stat. § 15A-976(b) (2003) states, “[i]f the State gives notice not later than 20 working days before trial of its intention to use evidence . . . the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.” (emphasis supplied). N.C. Gen. Stat. § 15A-976(a) (2003) states, “[a] motion to suppress evidence in superior court may be made at any time prior to trial except as provided in subsection (b).” (emphasis supplied).
    Nothing in N.C. Gen. Stat. § 15A-976(a) or (b) requires formal service of notice by the State of its intent to use evidence at trial. Instead, these sections only require notice to be given twenty working days prior to trial before the defendant's duty to file a motion to suppress within ten working days of trial is triggered. The determining issue is not whether there was service, but rather whether defendant had notice, and if so, whether defendant met his burden to show his motion to suppress under N.C. Gen. Stat. § 15A-976(b) was timely filed.
    After a careful review of the record, we hold defendant received notice from the State of its intent to use certain evidence at trial “not later than 20 working days before trial.” N.C. Gen. Stat. § 15A-976(b). The only issue before the trialcourt was whether defendant filed his motion to suppress ten days before trial.
    The record shows on 19 February 2003, the State first served a discovery response on defendant's first attorney Phillips. This response included a notice of intent to use evidence obtained as a result of the search of defendant's home. Copies were filed and placed in the official case file. Phillips had withdrawn as counsel for defendant at this time. The State subsequently served a plea offer that included the previously served notice of intent and discovery response upon Mansfield, defendant's attorney, on 24 March 2003. Mansfield filed a motion to suppress on 4 April 2003, three days before defendant was to appear in court. Based on this evidence, the trial court ruled that defendant's motion to suppress was untimely filed and granted the State's motion to dismiss. As defendant failed to assign error to this finding of fact, it is binding on appeal. Watkins, 337 N.C. at 438, 446 S.E.2d at 68.
    Defendant failed to show that he was not given timely notice twenty days before trial. Defendant was required but failed to file his motion to suppress within ten days. The trial court's finding of fact of untimeliness supports its conclusion of law to grant the State's motion to dismiss. Defendant's assignment of error is overruled.
IV. Conclusion
    Defendant failed to assign error to the trial court's finding of fact that his motion to suppress was untimely pursuant to N.C. Gen. Stat. § 15A-976(b). This finding of fact is conclusive onappeal and supports the trial court's conclusion of law to grant the State's motion to dismiss. Watkins, 337 N.C. at 438, 446 S.E.2d at 68. The trial court's judgment is affirmed.
    Affirmed.
    Judges MCGEE and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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