STATE OF NORTH CAROLINA
No. 00 CRS 2108-2112
Attorney General Roy Cooper, by Assistant Attorney General
John A. Payne, for the State.
Russell J. Hollers, III, for defendant-appellant.
A party may appeal a judgment or order in a criminal action by giving oral notice of appeal at trial or filing notice of appeal within fourteen days after entry of the judgment or order. (See footnote 1) In this case, Defendant appealed his probation order four years after entry of the order; therefore, we must dismiss his appeal.
On 17 April 1997, Defendant Bennie Mack was convicted of five counts of obtaining property by false pretenses. The trial court sentenced Defendant to six to eight months imprisonment on each count, but suspended the sentences and placed him on supervisedprobation for sixty months until 16 April 2002. The judgments also required Defendant to pay restitution.
On 30 August 2000, the trial court found Defendant in violation of his probation for failure to make restitution and extended Defendant's term of probation three years to 16 April 2005. On 12 December 2000, the trial court again modified the probation order, ordering a payment schedule of $1000.00 per month to increase to $1500.00 per month toward the more than $100,000.00 Defendant owed in restitution.
On 3 December 2004, the trial court conducted a probation violation hearing based on Defendant's reported failure to comply with the payment schedule under the 12 December 2000 order. Following the hearing, the trial court ordered that Defendant's probation be revoked.
On 8 December 2004, Defendant filed a Motion for Appropriate Relief to vacate the judgment contending that the trial court did not have jurisdiction to extend his probation for three years in the 30 August 2000 order, as it violated section 15A-1342 of the North Carolina General Statutes. By order entered 17 December 2004, the trial court denied Defendant's Motion for Appropriate Relief.
Before this Court, Defendant argues that sections 15A-1342(a), 15A-1343.2, and 15A-1344 of the North Carolina General Statutes prohibited the trial court from extending his probation past 16 April 2002, five years from the date of the judgment. We, however,do not reach the merits of this issue because Defendant waived his right to appeal the 30 August 2000 modification order by waiting four years to bring this appeal. N.C. R. App. P. 4(a) (Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by (1) giving oral notice of appeal at trial, or (2) filing notice of appeal . . . within 14 days after entry of the judgment or order[.]). Indeed, as the State correctly contends, Defendant's attempt to appeal from the denial of his Motion for Appropriate Relief is an impermissible collateral attack on the probation modification order. See State v. Rush, 158 N.C. App. 738, 740-41, 582 S.E.2d 37, 38-39 (2003) (after probation had been revoked the defendant waived her right to challenge the underlying judgment by not withdrawing her guilty plea, directly appealing the judgment, or filing a writ of certiorari). Accordingly, this matter must be dismissed as untimely.
We note in passing that Defendant did not petition this Court to grant a writ of certiorari. N.C. R. App. P. 21(e). North Carolina Rule of Appellate Procedure 21(e) provides that:
Petitions for writ of certiorari to review orders of the trial court denying motions for appropriate relief upon grounds listed in G.S. 15A-1415(b) . . . shall be filed in and determined by the Court of Appeals and the Supreme Court will not entertain petitions for certiorari or petitions for further discretionary review in these cases. In the event the petitioner unreasonably delays in filing the petition or otherwise fails to comply with a rule of procedure, the petition shall be dismissed by the Court.
N.C. R. App. P. 21(e). The North Carolina Rules of Appellate Procedure are mandatory and 'failure to follow these rules will subject an appeal to dismissal.' Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (citation omitted); State v. McCoy, __ N.C. App. __, __, 615 S.E.2d 319, 320-21, appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005) (the defendant's notice of appeal was not timely filed and the footnote in his brief asking that this Court consider his brief a petition for writ of certiorari was not proper).
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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