STATE OF NORTH CAROLINA
v. Columbus County
Nos. 03 CRS 52079
GERALD GLENN BOSWELL, 04 CRS 51797
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State
Paul T. Cleavenger for defendant-appellant.
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).
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