An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1270


Filed: 5 July 2005


         v.                        Swain County
                                No. 01 CR 153
HUEY LEE BUCHANAN                                

    Appeal by defendant from orders filed 4 September 2003 by Judge C. Phillip Ginn and 23 August 2004 by Judge Zoro J. Guice, Jr., in Swain County Superior Court. Heard in the Court of Appeals 6 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    McKeever, Edwards, Davis & Hays, PA, by Fred H. Moody, Jr., for defendant-appellant.
    BRYANT, Judge.
    Huey Lee Buchanan (defendant) appeals orders filed 4 September 2003 and 23 August 2004, entered consistent with hearings before the Honorable C. Philip Ginn and the Honorable Zoro J. Guice, Jr.
     The parties have stipulated to the following statement of facts:
             Defendant was charged by citation with driving while impaired (N.C. Gen. Stat. §20- 138.1) and improper turn (N.C. Gen. Stat. § 20- 153(a)) on January 28, 2001. The matters came on for trial before the Honorable Danny E. Davis, Judge of the District Court, sitting in Swain County on the 10th day of October 2002.
            The Defendant was arraigned and entered pleas of not guilty. The State offered evidence from the arresting officer and his supervising officer concerning the stop of the Defendant on January 28, 2001. At a point in the presentation of the evidence, Judge Davis allowed a defense motion to suppress further testimony from the two witnesses called by the State on the ground that the Defendant had been unlawfully detained. The State made no tender of additional evidence and made no request for a recess or voir dire examination. Upon inquiry by the Court, the State rested. At the close of the State's evidence, the Defendant moved to dismiss the driving while impaired charge for insufficiency of the State's evidence. The Court allowed the motion and entered a judgment of dismissal.

    On 16 October 2002, the State appealed to Superior Court pursuant to N.C.G.S. § 15A-1432. The State requested a de novo hearing of the order dismissing the driving while impaired charge, as well as reinstatement of the driving while impaired charge against defendant. The State argued that the order dismissing the case, as well as the granting of defendant's motion to suppress, were erroneous. On 28 October 2002, defendant moved to dismiss the appeal on the ground that allowing the State's motion would subject him to double jeopardy. Defendant's motion to dismiss was denied on 4 September 2003. On 23 August 2004, the Superior Court entered an order reinstating the driving while impaired charge against defendant and remanding the matter to district court for further proceedings. On 25 August 2004, defendant filed written notice of appeal.

    On appeal defendant argues he was subjected to double jeopardywhen the Superior Court denied his motion to dismiss the appeal, reinstated the driving while impaired charge and remanded for trial. We agree.
    “The state's right of appeal in a criminal proceeding is entirely statutory; it had no such right at the common law. Statutes granting a right of appeal to the state must be strictly construed.” State v. Murrell, 54 N.C. App. 342, 343-44, 283 S.E.2d 173, 173-74 (1981), disc. rev. denied, 304 N.C. 731, 288 S.E.2d 804 (1982) (citations omitted ). Pursuant to N.C.G.S. § 15A-1445(a)(1), the dismissal of the charges against defendant “would be appealable by the state unless further prosecution of defendant is barred by principles of double jeopardy.” Murrell, 54 N.C. App. at 344, 283 S.E.2d at 174.
    In the instant case, the District Court dismissed the driving while impaired charge based on insufficiency of the State's evidence. Even assuming arguendo that the District Court's rulings on the motion to suppress and the motion to dismiss were incorrect, further proceedings against defendant were barred by double jeopardy because the case was dismissed on the merits and did involve a determination of guilt or innocence. See Murrell, 54 N.C. App. at 344, 283 S.E.2d at 174 (“under N.C.G.S. 15-173 a dismissal based on lack of evidence has the effect of a verdict of not guilty”). Thus, the State had no right to appeal the judgment entered. Accordingly, the order is reversed.
    Reversed .
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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