An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1230


Filed: 3 October 2006


    v.                            Columbus County
                                Nos. 03 CRS 52079
GERALD GLENN BOSWELL,                    04 CRS 51797

    Appeal by defendant from judgments entered 1 June 2005 by Judge William C. Gore, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 11 September 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State

    Paul T. Cleavenger for defendant-appellant.

    GEER, Judge.

    Defendant Gerald Glenn Boswell appeals from his conviction in superior court for two counts of misdemeanor driving with a revoked license in violation of N.C. Gen. Stat. § 20-28(a) (2005). Because we are unable to determine from the record on appeal whether the superior court had jurisdiction over defendant's case, we are compelled to dismiss this appeal.
    The statement in the printed record regarding the organization of the trial tribunal indicates only that defendant was found guilty and sentenced in superior court and that he then appealed to this Court. The record contains no reference to any proceedings in the district court.
    District courts have exclusive original jurisdiction of allmisdemeanors. State v. Felmet, 302 N.C. 173, 174-75, 273 S.E.2d 708, 710 (1981). A superior court's jurisdiction over the trial of a misdemeanor is derivative and "arises only upon appeal from a conviction of the misdemeanor in district court." Id. A superior court has no jurisdiction to try a defendant on a criminal summons for a misdemeanor charge unless the defendant was tried and convicted in district court and then appealed 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).
    Our Supreme Court held in Felmet that a record on appeal in a criminal case that originated in district court must include the judgment in district court and entries showing an appeal of that judgment to superior court. 302 N.C. at 176, 273 S.E.2d at 711 ("These items should have been included in the record on appeal in this case but were not. Defendant had the duty to see the record on appeal was properly compiled."). When, because those items are omitted, "the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed." Id. Because, based on the record before us, we are unable to determine whether the superior court had jurisdiction, Felmet requires that we dismiss the appeal ex mero motu. Id. See also State v. Hunter, 245 N.C. 607, 609, 96 S.E.2d 840, 841 (1957) ("What disposition was made of these cases in the inferior court or how they reached the Superior Court is not made to appear [in the record]. This alone is sufficient to require a dismissal of the appeal.").    Dismissed.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***