Appeal by defendant from order entered 13 December 2006,
nunc
pro tunc 22 June 2006, by Judge Quentin T. Sumner in Pitt County
Superior Court. Heard in the Court of Appeals 29 August 2007.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for
defendant-appellant.
CALABRIA, Judge.
Bohdan Leskiw (“defendant”) appeals from an order granting the
State's appeal, denying defendant's motion to dismiss the State's
appeal, and reinstating the driving while impaired charge against
the defendant. Because we find that the trial court erred by not
conducting a de novo review, we reverse and remand to the superior
court.
On 11 March 2005, Greenville police officer M.L. Montanye
(“Officer Montanye”) stopped defendant and asked him to produce his
driver's license and vehicle registration. Defendant was driving
with a valid driver's license, however the Division of Motor
Vehicle's electronic database indicated that defendant's licensehad been revoked for an impaired driving offense. Defendant
offered Officer Montanye a receipt indicating he paid certain fees
to show the license was valid. Officer Montanye did not examine
this documentation. Although defendant was arrested for driving
while impaired, driving while license revoked, displaying a license
that was suspended and a seatbelt violation, the citation for
driving while impaired is the only citation included in the record.
Pursuant to N.C. Gen. Stat. § 20-28.3 (2005), Officer Montanye
seized defendant's vehicle. Defendant expended $475.00 in towing
and storage fees, and $950.00 to retain counsel and retrieve his
vehicle. Defendant successfully retrieved his vehicle on 25 March
2005, two weeks after it was seized. The State later dismissed the
charges for driving while license was revoked and displaying a
license known to be revoked.
(See footnote 1)
The State concedes the seizure of
defendant's vehicle was improper because defendant's license was
valid at the time.
Defendant moved to dismiss the driving while impaired charge
asserting double jeopardy and lack of another remedy at law for the
loss of use of his car, payment of attorneys fees, and towing and
storage fees. On 26 May 2006, nunc pro tunc 16 March 2006, the
Honorable G. Galen Braddy of Pitt County District Court dismissed
the driving while impaired charge. The State filed a motion to
appeal on 20 March 2006. On 16 May 2006, defendant filed a motion
to dismiss the State's appeal because the State did not file itsappeal in superior court and it did not specify the factual or
legal basis for appeal. On 22 June 2006, in Pitt County Superior
Court, the Honorable Quentin T. Sumner heard oral arguments on
defendant's motion to dismiss the State's appeal, granted the
State's appeal, denied defendant's motion to dismiss, and
reinstated the driving while impaired charge. Also on 22 June
2006, defendant gave oral notice of appeal and the trial judge
certified the issue for appeal was justiciable. The court filed
the order on 13 December 2006. Defendant certified in his written
notice of appeal that the appeal was not taken for the purpose of
delay.
I. Interlocutory Appeals
As a general rule, defendants in criminal cases have no right
to appeal an interlocutory order.
State v. Blades, 209 N.C. 56,
57, 182 S.E. 714 (1935). “An order is interlocutory if it does not
determine the issues in an action, but instead merely directs some
further proceeding preliminary to the final decree.”
State v.
Nichols, 140 N.C. App. 597, 598, 537 S.E.2d 825, 826 (2000)
(quoting
Collins v. Talley, 135 N.C. App. 758, 759, 522 S.E.2d 794,
796 (1999)). Certain interlocutory appeals are permitted by
statute.
State v. Thompson, 128 N.C. App. 547, 550, 496 S.E.2d
597, 598,
rev'd on other grounds by, 349 N.C. 483, 508 S.E.2d 277
(1998). Under N.C. Gen. Stat. § 15A-1432(d) (2005), a defendant
who certifies an appeal is not taken for purposes of delay and
whose cause is found by a judge to be “appropriately justiciable,”
may appeal superior court orders granting a State's appeal of adistrict court order dismissing criminal charges directly to the
Court of Appeals. N.C. Gen. Stat. § 15A-1432(d) (2005);
State v.
Smith, 165 N.C. App. 256, 259, 598 S.E.2d 408, 410 (2004),
rev'd on
other grounds by, 359 N.C. 618, 614 S.E.2d 279 (2005). Defendant
complied with the prerequisites mandated in the statute, therefore
his interlocutory appeal may be heard.
II. State's Appeal under N.C. Gen. Stat. § 15A-1432
Defendant argues the superior court judge erred in granting
the State's appeal because the State's motion failed to specify the
basis of its appeal as required by N.C. Gen. Stat. § 15A-1432(b)
(2005). We disagree.
The North Carolina Criminal Procedure Act governs appeals by
the State from a district court judge's order. N.C. Gen. Stat. §
15A-1432 (2005). The State may appeal to superior court when
“there has been a decision or judgment dismissing criminal charges
as to one or more counts.” N.C. Gen. Stat. § 15A-1432(a)(1)
(2005). N.C. Gen. Stat. § 15A-1432 sets forth “a simplified motion
practice” for the State to follow in its appeal. N.C. Gen. Stat.
§ 15A-1432(b) (Criminal Code Commission Commentary). Subsection
(b) states: “the appeal is by written motion specifying the basis
of the appeal made within 10 days after the entry of the judgment
in the district court.” N.C. Gen. Stat. § 15A-1432(b) (2005).
The term “basis of the appeal” is not defined in the statute,
however this issue has been addressed in prior cases. In
State v.
Hamrick, the State's notice of appeal was written in the order
dismissing the charges, which stated that the State “gave notice ofappeal.”
State v. Hamrick, 110 N.C. App. 60, 64, 428 S.E.2d 830,
832 (1993). This Court held such notice was insufficient because
it did not specify the basis of the appeal.
Id.
In
State v. Ward, this Court found sufficient notice where the
State's notice of appeal alleged that there were “no written
findings of fact that support the decision and Order of dismissal,”
and that “[t]he reason[s], stated in open court, of pre-trial
publicity and/or prosecutorial misconduct are not legally proper
reasons for dismissal of criminal charges without a finding of fact
based upon the evidence . . . .”
State v. Ward, 127 N.C. App. 115,
117, 120-21, 487 S.E.2d 798, 800, 802 (1997).
Defendant asserts the State's appeal merely cited a
chronological summary of the proceedings in district court instead
of stating the legal basis for its appeal. We disagree.
The State's motion to appeal stated in pertinent part:
6. That Defendant, through counsel, argued for
dismissal of the driving while impaired charge
by alleging a Double Jeopardy violation
pursuant to G.S. 15A-951, G.S. 15A-953, G.S.
20-28.5, Article 1, Section 19 and Section 23
of the North Carolina Constitution, and the
Fourth and Fourteenth Amendments to the United
States Constitution,
but presented no
testimonial or documentary evidence in support
of said motion to dismiss.
7. That the State contended that Defendant's
argument in support of the motion to dismiss
failed to allege any substantial violation of
the Defendant's statutory or constitutional
rights.
. . . .
THEREFORE, the State requests that this
Honorable Court: 1. Find that
no competent evidence was
presented to support the motion and order to
dismiss
2. Find that the District Court Judge's
Dismissal of this charge was contrary to law .
. . .
(emphasis added).
The State's motion alleges there was “no testimonial or
documentary evidence in support of [defendant's] motion to
dismiss,” that defendant “failed to allege any substantial
violation of the Defendant's statutory or constitutional rights,”
and asks the court to find that “no competent evidence was
presented to support the motion and order to dismiss,” and
“[d]ismissal of this charge was contrary to law.” Because these
statements
delineate a basis for the State's appeal, they satisfy
the requirements of N.C. Gen. Stat. § 15A-1432(b) in accordance
with the statute and case law.
Ward, 127 N.C. App. at 120-21, 487
S.E.2d at 802. This assignment of error is overruled.
III. De Novo Hearing
Defendant next argues that the superior court failed to
conduct a
de novo review and examine evidence to determine whether
the district court order was correct. We agree.
The State contends that defendant failed to assign error to
each finding of fact which results in a presumption that the
findings are supported by competent evidence, citing
State v.
Taylor, 155 N.C. App. 251, 258, 574 S.E.2d 58, 64 (2002).
Taylor
involved defendant's appeal of a second-degree murder conviction
after a trial on the merits.
Taylor, 155 N.C. App. at 254, 574
S.E.2d at 61. We find this case distinguishable. In the case
subjudice, the defendant properly preserved his objection to the
court's failure to conduct a
de novo review at the hearing on the
motion to dismiss, in assignment of error number six, and in his
brief.
“In the State's appeal under G.S. 15A-1432, the hearing in
Superior Court is limited to a
de novo review of the District
Court's order dismissing criminal charges against a defendant . .
. .”
State v. Gurganus, 71 N.C. App. 95, 99, 321 S.E.2d 923, 926
(1984). This Court, in
State v. Ward,
addressed the issue of
whether the superior court properly reviewed the district court's
dismissal of criminal charges at a hearing on defendant's motion to
dismiss the State's appeal.
Ward, 127 N.C. App. at 117-18, 487
S.E.2d at 800. In
Ward, defendants were charged with unlawful
promotion and participation in a pyramid scheme.
Id., 127 N.C.
App. at 116, 487 S.E.2d at 799-800. They moved to dismiss on the
basis of prosecutorial misconduct.
(See footnote 2)
Id., 127 N.C. App. at 117, 487
S.E.2d at 800. The district court judge dismissed the charges and
the State appealed.
Id. Defendants moved to dismiss the State's
appeal.
Id. The superior court judge heard counsel's oral
arguments and entered an order reinstating the criminal charges and
remanding the matter to the district court.
Id. This Court found
that “[i]t is evident from the record that the superior court
misapprehended the nature of that court's review on appeal; andfailed to hold the necessary hearing for
de novo review in this
case.”
Id., 127 N.C. App. at 120, 487 S.E.2d at 801. This Court
reversed and remanded the case to superior court for a
de novo
hearing.
Id.
Here, as in
Ward,
the superior court heard oral arguments on
the validity of the State's appeal. At the hearing, the State
argued the basis for the appeal was there was no competent evidence
presented. Defendant argued that the district court considered
competent evidence in the form of defendant's sworn affidavit, by
taking judicial notice of the driving while impaired file, and
dismissal by the State of the driving while license revoked and
displaying license revoked charges. The superior court then
decided that the charges should be reinstated and remanded for
findings of fact and conclusions of law from the district court
judge. The superior court's order lists findings of fact and five
conclusions of law. Only one of the court's conclusions of law
related directly to the dismissal of the driving while impaired
charge, concluding that “there was no legal basis for the dismissal
of the driving while impaired charge . . . .”
The proper procedure on the State's appeal to the superior
court for dismissal of criminal charges is for the superior court
to conduct a
de novo hearing to determine whether the charges were
properly dismissed.
Gurganus, 71 N.C. App. at 97, 321 S.E.2d at
924-25 (State's appeal of dismissal of criminal charges was heard
upon a
de novo hearing, where superior court judge received
evidence, found facts, and concluded as a matter of law, jeopardyhad not attached and remanded to the district court for a trial on
the merits.
).
Like the superior court in
Ward, the Pitt County Superior
Court judge failed to hold a
de novo hearing prior to dismissing
the charges. Accordingly, the matter must be remanded to the
superior court with instructions to conduct a
de novo hearing,
“with an order affirming or reversing the district court's
dismissal to be subsequently entered.”
Ward, 127 N.C. App. at 120,
487 S.E.2d at 801. Because the superior court failed to conduct a
de novo hearing on the issue of whether the district court properly
dismissed the charges, the issue of whether the superior court
erred in reversing the district court's order is not properly
before us and we need not examine defendant's third argument.
Id.
Finally, we note that although defendant assigned eight errors
on appeal, defendant only argues three of them in his brief.
Assignments of error that are not argued are abandoned pursuant to
N.C. R. App. P. 28(b)(6) (2007).
State v. Clapp, 135 N.C. App. 52,
57, 519 S.E.2d 90, 93 (1999). Accordingly, we did not address
those errors we deemed abandoned.
Reversed and remanded.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
Footnote: 1