An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-869


Filed: 21 March 2006


         v.                        Guilford County
                                No. 03 CRS 90852

    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.

    BRYANT, Judge.


    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 the evidence.
    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 follows:

        1. The above-captioned case was heard in criminal district court of Guilford County on July 26, 2004 before the Honorable Bill Christian.

        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 District Court.

        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 court.


        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 of Appeals.

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 2005.
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 same offense 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. Petersilie, 334 N.C. 169, 175, 432 S.E.2d 832, 835 (1993) (citation omitted). 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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