An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
No. 02 CRS 774
RENEE SMITH HOWELL,
Appeal by Defendant from judgment entered 14 July 2004 by
Judge Howard R. Greeson, Jr. in Davie County Superior Court and
from order entered 12 April 2005 by Judge W. David Lee in Davie
County Superior Court denying Defendant's Motion for Appropriate
Relief. Heard in the Court of Appeals 24 August 2006.
Roy Cooper, by Assistant Attorney General
David D. Lennon, for the State.
Parker and Parker, Attorneys at Law, by Michael J. Parker, for
On 14 July 2004, a jury convicted Defendant of embezzlement.
That same day, the Honorable Howard R. Greeson, Jr. entered
judgment suspending a sentence of six to eight months imprisonment
and sentencing Defendant to thirty-six months of supervised
probation. On 20 July 2004, Defendant filed written notice of
appeal. Thereafter, the court reporter prepared the transcript of
the trial proceedings and, in her certificate of service, noted
that the transcript was delivered or mailed to the attorneys of
record on 14 September 2004. On 20 October 2004, Defendant filed, in Davie County Superior
Court, a Motion for Appropriate Relief (MAR 1"), which was denied
on 12 April 2005
following a hearing conducted by the Honorable W.
David Lee. Defendant then, on 12 August 2005, filed a second
Motion for Appropriate Relief (MAR 2"), also in Davie County
Superior Court. In an order filed 16 November 2005, the Honorable
Mark E. Klass continued the motion until it could be heard by Judge
Lee. Judge Klass' order also provided as follows:
The Defendant shall be and is hereby granted
an additional ninety (90) days to begin the
Appeal process and shall have until Wednesday,
November 23, 2005 to serve the Defendant's
proposed Record on Appeal on the State of
North Carolina to the Office of the District
Attorney for the Twenty-Second Judicial
The Record on Appeal contains a certificate of service signed
by Defendant's counsel indicating that the proposed record on
appeal was served on the State on 18 August 2005.
(See footnote 1)
consenting to the State's amendments and objections, the record was
settled on 6 December 2005 and filed in this Court on 14 December
2005. For the reasons which follow, we dismiss the appeal and
vacate the trial court's orders on Defendant's motions for
First, we address Defendant's argument concerning the trial
court's orders regarding MAR 1 and MAR 2. By these motions,
Defendant sought to have the trial court review alleged newly
discovered evidence and, based on this evidence, grant her a new
trial. North Carolina law provides that
[n]otwithstanding the time limitations herein,
a defendant at any time after verdict may by a
motion for appropriate relief, raise the
ground that evidence is available which was
unknown or unavailable to the defendant at the
time of trial, which could not with due
diligence have been discovered or made
available at that time, . . . and which has a
direct and material bearing upon . . . the
defendant's guilt or innocence.
N.C. Gen. Stat. § 15A-1415(c) (2005). However, the proper tribunal
in which to make a motion for appropriate relief is a question of
When a case is in the appellate division for
review, a motion for appropriate relief based
upon grounds set out in G.S. 15A-1415 must be
made in the appellate division. For the
purpose of this section a case is in the
appellate division when the jurisdiction of
the trial court has been divested as provided
in G.S. 15A-1448 . . . .
N.C. Gen. Stat. § 15A-1418(a) (2005). A trial court is divested of
jurisdiction when notice of appeal has been given and the time
period for giving notice of appeal has expired. N.C. Gen. Stat. §
15A-1448(a)(3) (2005). Rule 4 of the North Carolina Rules of
Appellate Procedure provides that a criminal defendant who does not
give oral notice of appeal at trial may file a written notice of
appeal within 14 days after entry of the judgment or order[.]
N.C. R. App. P. 4(a)(2). In this case, the trial court entered judgment against
Defendant on 14 July 2004. Six days later, Defendant gave timely
notice of appeal under Rule 4 of the Rules of Appellate Procedure.
Pursuant to Chapter 15A of the North Carolina General Statutes, the
trial court was divested of jurisdiction when Defendant gave her
notice of appeal and the time to give such notice had expired (that
is, as of 28 July 2004). Once the trial court was divested of
jurisdiction, this Court was the proper forum in which to file a
motion for appropriate relief. N.C. Gen. Stat. § 15A-1418(a);
State v. Brock, 46 N.C. App. 120, 264 S.E.2d 390 (1980).
A universal principle as old as the law is that the
proceedings of a court without jurisdiction of the subject matter
are a nullity. Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d
806, 808 (1964) (citing High v. Pearce, 220 N.C. 266, 17 S.E.2d 108
(1941)). 'When the record shows a lack of jurisdiction in the
lower court, the appropriate action on the part of the appellate
court is to arrest judgment or vacate any order entered without
authority.' State v. Crawford, 167 N.C. App. 777, 779, 606 S.E.2d
375, 377, disc. review denied, 359 N.C. 412, 612 S.E.2d 324 (2005)
(quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711
(1981)). We conclude that because Defendant filed MAR 1 and MAR 2
in the trial court after the trial court had been divested of
jurisdiction, we must vacate the trial court's orders regarding
Next, we address Defendant's appeal from the trial court's
judgment entered upon the jury's verdict. Because Defendant failed
to timely serve the proposed record on appeal on the State and
failed to timely file the record in this Court, her appeal is
subject to dismissal.
Under North Carolina law, an appellant must serve the proposed
record on appeal on the appellee [w]ithin 35 days after the
reporter's or transcriptionist's certification of delivery of the
transcript[.] N.C. R. App. P. 11(a). When notice is delivered by
mail, three days shall be added to the time period in which a
party must serve or file a document. N.C. R. App. P. 27(b).
The time schedules set out in the rules are
designed to keep the process of perfecting an
appeal to the appellate division flowing in an
orderly manner. Counsel is not permitted to
decide upon his own enterprise how long he
will wait to take his next step in the
State v. Gillespie
, 31 N.C. App. 520, 521, 230 S.E.2d 154, 155
(1976), disc. review denied
, 291 N.C. 713, 232 S.E.2d 205
In this case, the court reporter certified that the transcript
was delivered or mailed to the attorneys on 14 September 2004.
Therefore, assuming service by mail, Defendant initially had until
22 October 2004 to serve the proposed record on the State.
However, [t]he trial tribunal for good cause shown by the
appellant may extend once for no more than 30 days the time
permitted by Rule 11 . . . for the service of the proposed record
on appeal. N.C. R. App. P. 27(c)(1). Accordingly, if Defendanthad properly sought and been granted an extension, she would have
had until 22 November 2004 to serve the proposed record.
(See footnote 2)
proposed record was not served on the State, however, before 18
August 2005, well outside the time frame required by the appellate
rules and any extension of time that could have been properly
(See footnote 3)
In Higgins v. Town of China Grove
, 102 N.C. App. 570, 402
S.E.2d 885 (1991), this Court dismissed an appeal when the proposed
record was not timely served on the appellee and the appellant had
failed to timely file the record.
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. DOT
N.C. 400, 401, 610 S.E.2d 360, 360, reh'g denied
, 359 N.C. 643, 617
S.E.2d 662 (2005) (quoting Steingress v. Steingress
, 350 N.C. 64,
65, 511 S.E.2d 298, 299 (1999)). Therefore, the appeal is
dismissed. During oral argument, Defendant asserted that if she did
violate the Rules of Appellate Procedure, thereby subjecting her
appeal to dismissal, we should nevertheless rule on the merits of
the appeal by granting her a writ of certiorari
Rule 21 of the North Carolina Rules of Appellate Procedure
provides in pertinent part that [t]he writ of certiorari may
issued in appropriate circumstances by either appellate court to
permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take
timely action[.] N.C. R. App. P. 21(a)(1) (emphasis added).
should only be issued for good or sufficient
cause shown, and the party seeking it is required, not only to
negative laches on his part in prosecuting the appeal, but also to
show merit or that he has reasonable grounds for asking that the
case be brought up and reviewed on appeal. State v. Angel
N.C. 715, 716, 140 S.E. 727, 728 (1927); see also In re Snelgrove
208 N.C. 670, 182 S.E. 335 (1935). A party is entitled to a writ
when_and only when_the failure to perfect the appeal
is due to some error or act of the court or its officers, and not
to any fault or neglect of the party or his agent. Womble v.
Moncure Mill and Gin Co.
, 194 N.C. 577, 579, 140 S.E. 230, 231
(1927)(citations omitted); see also Snelgrove
, 208 N.C. at 672, 182
S.E. at 336.
In this case, there is no evidence that Defendant's untimely
service of the proposed record on the State and failure to timely
file the record at this Court occurred for any reason butunexplained delay. Therefore, we decline to grant her oral request
to issue our writ of certiorari
For all the reasons stated, the trial court's orders on
Defendant's motions for appropriate relief are vacated, Defendant's
appeal is dismissed, and her oral request for a writ of certiorari
VACATED, DISMISSED, AND WRIT OF CERTIORARI DENIED.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
While Defendant purportedly served the proposed record on 18
August 2005, this date is outside the time frame allowed by the
Rules of Appellate Procedure and came before the trial court
purported to grant Defendant additional time in which to serve the
proposed record. We are unable to discern from the record before
us whether Defendant served the proposed record before the order of
Judge Klass was entered, or if Defendant's certificate of service
contains an inaccurate date.
A thirty-day extension would have allowed Defendant until 21
November 2004 to serve the proposed record. Since that day was a
Sunday, the time to serve the proposed record was automatically
extended one additional day. N.C. R. App. P. 27(a) (The last day
of the period so computed is to be included, unless it is a
Saturday, Sunday, or a legal holiday, in which event the period
runs until the end of the next day which is not a Saturday, Sunday,
or a legal holiday.)
Although the trial court's order filed 16 November 2005
purports to give Defendant additional time to serve the proposed
record on appeal, this order is invalid because it grants Defendant
until 23 November 2005 to serve the proposed record on the State.
This date is exactly one year and one day past the deadline to
serve the proposed record that the trial court could have properly
permitted, in violation of Rule 27 of the appellate rules.
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