STATE OF NORTH CAROLINA
No. 02 CRS 86014
DAWN SHERRYLL POOR
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
J. Clark Fischer for defendant-appellant.
Dawn Sheryll Poor (defendant) was charged with driving while
impaired in violation of N.C. Gen. Stat. § 20-138.1 and with
misdemeanor hit and run in violation of N.C. Gen. Stat. § 20-166(b)
on 27 May 2003. Defendant was indicted on 6 October 2003 for
impaired driving and driving while her driver's license was revoked
in file number 86013, and for misdemeanor hit and run in file
number 86015. Defendant was also indicted on 6 October 2003, under
N.C. Gen. Stat. § 20-138.5, for habitual impaired driving in file
number 86014, on the grounds that defendant had been convicted of
three offenses involving impaired driving within seven years of the
27 May 2003 offense. Defendant was tried before a jury on 23
February 2004. At the close of the State's evidence, defendant moved to
dismiss all charges. The indictment in file number 86013, which
included the misdemeanor driving while impaired charge, was
dismissed because the indictment was defective. The date of
offense listed on the indictment was 24 September 2000, rather than
27 May 2003, and no evidence was presented that defendant was
driving while impaired on 24 September 2000. The indictment in
file number 86015 for the misdemeanor hit and run was also
dismissed as being defective. This indictment stated that the hit
and run had resulted in personal injury, but no evidence of
personal injury was presented by the State, only evidence of
property damage. This indictment also included an erroneous
location of the offense.
Defendant argued that the habitual impaired driving charge in file number 86014 should also be dismissed because pursuing that charge, after the misdemeanor impaired driving charge in file number 86013 had been dismissed, would subject defendant to double jeopardy. However, the trial court denied defendant's motion to dismiss the habitual impaired driving charge.
Defendant presented evidence, and at the close of all the evidence, she renewed her motion to dismiss on the grounds of insufficiency of the indictment, double jeopardy, and sufficiency of the evidence. The trial court denied defendant's motion. The jury found defendant guilty of impaired driving. She was sentenced to nineteen to twenty-three months in prison for habitual driving while impaired. Defendant appeals. Defendant listed five assignments of error in the record on appeal but argues only one assignment of error in her brief. The remaining assignments of error are deemed abandoned pursuant to Rule 28(b)(6) of the N.C. Rules of Appellate Procedure. Defendant's sole argument is that the trial court erred by denying defendant's motion to dismiss the charge of habitual driving while impaired on the grounds of double jeopardy. Defendant argues that she was twice put in jeopardy for the same offense when the State was allowed to proceed on two indictments: the misdemeanor driving while impaired charge in file number 86013 and the habitual impaired driving charge in file number 86014.
Defendant cites only the following to support her argument:
The Double Jeopardy Clause of the Fifth Amendment [of the United States Constitution], applicable to the States through the Fourteenth Amendment [of the United States Constitution], provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
State v. Bell, 164 N.C. App. 83, 88, 594 S.E.2d 824, 827 (2004) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865 (1989)). However, defendant fails to relate this cited case to her assignment of error or to any supporting argument. Defendant does not argue that she was prosecuted a second time for the same offense after either an acquittal or a conviction. Nor does she argue that she wassubjected to multiple punishments for the same offense. Thus, defendant's appeal is not in accordance with Rule 28 of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 28(b)(6); see also Brown v. Boney, 41 N.C. App. 636, 647, 255 S.E.2d 784, 791 (finding the plaintiff in violation of Rule 28 of the North Carolina Rules of Appellate Procedure where the plaintiff "made no attempt to relate the cases cited to his one assignment of error or to any argument advanced in support thereof"), disc. review denied, 298 N.C. 294, 259 S.E.2d 910 (1979).
Defendant merely asserts that the Double Jeopardy Clause was violated because she "was forced to defend herself at the same time on two different charges of the same driving while [impaired] offense." However, defendant does not present any authority to support this contention, thereby again violating N.C.R. App. P. 28(b)(6).
Defendant has not only failed "to present the arguments and authorities upon which [she] rel[ies] in support of [her] respective position thereon[,]" but she has also failed "to define clearly the questions presented" to our Court. See N.C.R. App. P. 28(a). Since "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant[,]" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005), we dismiss defendant's appeal.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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