An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-55


Filed: 2 August 2005


         v.                        Union County
                                No. 99 CRS 14021

    Appeal by defendant from judgments entered 21 July 2004 by Judge W. David Lee in Union County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.

    Kelly Scott Lee for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 and resisting arrest in violation of N.C. Gen. Stat. § 14-223, both misdemeanor offenses. “Exclusive original jurisdiction of all misdemeanors is in the district courts of North Carolina.” State v. Felmet, 302 N.C. 173, 174, 273 S.E.2d 708, 710 (1981); see also N.C. Gen. Stat. § 7A-271. The superior court's jurisdiction over the trial of a misdemeanor is derivative, with the exception of the circumstances enumerated in N.C. Gen. Stat. § 7A-721(a), and “arises only upon appeal from a conviction of the misdemeanor in district court.” Felmet, 302 N.C. at 174-75, 273 S.E.2d at 710; see also N.C. Gen. Stat. 7A-271(b). Thesuperior court has no jurisdiction to try a defendant on a warrant for a misdemeanor charge unless he is first tried, convicted and sentenced in district court and then appeals that judgment for a trial de novo in superior court. State v. Hall, 240 N.C. 109, 111, 81 S.E.2d 189, 190-91 (1954).
    The printed record in this case indicates that the Monroe Police Department issued a citation to defendant for unlawfully operating her vehicle on a street while subject to an impairing substance and for unlawfully resisting Officer Davey Plyler. The record does not show defendant was ever tried in district court on these charges. The record only reveals: (1) that a jury in superior court found defendant guilty as charged on both counts, (2) the trial court imposed a suspended sentence for the driving while impaired conviction, and (3) the trial court sentenced defendant to 30 days in the custody of the Union County Sheriff for the resisting a public officer conviction. The record fails to disclose derivative jurisdiction in the superior court through appeal of a district court conviction. Furthermore, as the State notes in its motion to dismiss, there is no reference in the transcript to the required documents. Because the record fails to disclose that the superior court had jurisdiction, we have none on appeal. Therefore, the appeal must be dismissed. See State v. Hunter, 245 N.C. 607, 96 S.E.2d 840 (1957); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955). The State's motion to dismiss the appeal is allowed.
    Dismissed.    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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