Appeal by defendant from order entered 29 June 2005 by Judge
John O. Craig, III, in Guilford County Superior Court. Heard in
the Court of Appeals
27 February 2006.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
Defendant appeals from a superior court order remanding
charges of driving while impaired and failure to comply with
license restrictions to the district court for trial. The State
has filed a motion to dismiss this appeal, contending defendant
failed to comply with the procedural prerequisites in appealing an
interlocutory order pursuant to N.C. Gen. Stat. § 15A-1432(d).
Defendant contends in his brief that the superior court erred in
remanding the charges for trial. He argues the State failed to
prove that the rule against double jeopardy does not bar further
prosecution of defendant thereby permitting the State to appeal,
pursuant to N.C. Gen. Stat. § 15A-1432(a)(1), a district courtjudgment dismissing charges.
Defendant was tried in Guilford County District Court on
charges of driving while impaired and failure to comply with
license restrictions. Judge William C. Christian granted
defendant's motion to dismiss the charges on 26 July 2004. The
State timely filed notice of appeal to the superior court pursuant
to N.C. Gen. Stat. § 15A-1432(b) (2005). Defendant moved to
dismiss the appeal on the ground the rule against double jeopardy
prohibited further prosecution because evidence had been presented
at the time the district court allowed the motion to dismiss the
charges. The State responded that the rule against double jeopardy
did not bar further prosecution because the court dismissed the
charges on the ground of improper arraignment, not insufficiency of
After hearing arguments of counsel, Judge John O. Craig, III,
denied defendant's motion to dismiss the appeal on 16 November
2004. Defendant gave notice of appeal in open court and on 23
April 2005, filed a certification to the superior court that the
appeal was not being taken for purposes of delay. On 29 June 2005
Judge Craig filed a written order, quoted in pertinent part as
FINDINGS OF FACT
1. The above-captioned case was heard in
criminal district court of Guilford County on
July 26, 2004 before the Honorable Bill
2. The defendant plead not guilty.
3. The State called two highway patrolman
[sic] to the stand to testify against the
defendant. Both the state and defendant agree
that evidence was presented.
4. At the end of all the evidence the case
was dismissed by Judge Christian.
5. The State gave Notice of Appeal to the
Guilford County Superior Court pursuant to
North Carolina General Statute 15A-1432.
6. The defendant moved to dismiss the State's
appeal to the Superior Court pursuant to 15A-
1432(a) because jeopardy had already attached
and evidence had already been offered in
7. The State contends the case was dismissed
for an improper arraignment.
8. The file did not reflect why the case was
dismissed, only that the case was dismissed
after the presentation of evidence[.]
9. The defendant contends the State's appeal
to Superior Court should not be allowed
because jeopardy attached at trial in district
It is hereby ORDERED, ADJUDGED AND DECREED
1. That after hearing the arguments of
counsel, Defendant's Motion to Dismiss the
Appeal is denied.
2. That the matter be remanded to the
district court division of Guilford County for
a new hearing on the merits.
3. That in open court the Defendant gave
notice of appeal to the North Carolina Court
Defendant filed the record on appeal in this Court on 7 July 2005.
The State filed its motion to dismiss the appeal on 7 September
State's Motion to Dismiss Appeal to this Court
An immediate appeal of an interlocutory order of a superior
court remanding a criminal case to the district court for trial is
permitted if: (1) the defendant certifies that the appeal is not
being taken for the purpose of delay; and (2) the superior court
judge finds the cause is appropriately justiciable in the
appellate division as an interlocutory matter. N.C. Gen. Stat. §
15A-1432(d) (2005). We note that although defendant did not make
the certification at or about the time he gave notice of appeal, he
did subsequently make the certification and included it in the
record on appeal. We conclude defendant sufficiently complied with
the first requirement. We further note that although Judge Craig
did not make an explicit finding that the cause is appropriately
justiciable . . . as an interlocutory matter, he did state after
making his ruling in open court that this needs to go on to the
appellate level and, you know, let them decide this issue . . . .
He also stated, [A]t this point I'm going to let the thing go on
up, and then I guess I would order the remand but give Mr. O'Hale
the right to take it up to the Court of Appeals. We conclude
these statements serve as a functional equivalent of an explicit
finding that the cause is appropriately justiciable . . . as an
interlocutory matter. For the foregoing reasons, we deny the
State's motion to dismiss this appeal.
Defendant's Motion to Dismiss Appeal to Superior Court
Unless the rule against double jeopardy prohibits further
prosecution, the State may appeal from the district court judge to
the superior court: (1) [w]hen there has been a decision orjudgment dismissing criminal charges as to one or more counts.
N.C. Gen. Stat. § 15A-1432(a)(1) (2005). The Double Jeopardy
Clause protects an individual against (1) a second prosecution for
the same offense
after acquittal, (2) a second prosecution for the
after conviction, and (3) multiple punishments for the
same offense. State v. Gardner,
315 N.C. 444, 451, 340 S.E.2d
701, 707 (1986).
Jeopardy attaches in a non-jury trial when the
court receives evidence. State v. Brunson
, 327 N.C. 244, 245, 393
S.E.2d 860, 861-62 (1990). However, even though jeopardy may have
attached, the subsequent prosecution of a previously dismissed
charge does not violate double jeopardy if the dismissal is not
based upon grounds of factual guilt or innocence. State v. Priddy
115 N.C. App. 547, 551, 445 S.E.2d 610, 613, disc. review denied
337 N.C. 805, 449 S.E.2d 751 (1994).
In a criminal case the State is required to prove beyond a
reasonable doubt that a court has jurisdiction. State v.
, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993) (citation
As a general rule, a statute granting the State a right
of review, being in derogation of common law, must be strictly
construed. State v. Harrell
, 279 N.C. 464, 467, 183 S.E.2d 638,
640 (1971) (citation omitted). The
present record and the
superior court's findings show only that the charges were dismissed
after evidence was presented. The superior court failed to find
the charges were dismissed on the ground of improper arraignment,
or similar grounds other than factual guilt or innocence, thereby
giving the State the right of appeal. The superior court'sfindings do not support its order denying defendant's motion to
dismiss the State's appeal and remanding the matter to the district
court for a new trial. The order must be reversed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
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