NO. COA07-504
Appeal by defendant from judgments entered 27 September 2006
by Judge Kenneth F. Crow in Craven County Superior Court. Heard in
the Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Don Willey for defendant-appellant.
BRYANT, Judge.
On 27 September 2006 Jorge Maldonado (defendant) pled guilty
to ten counts of obtaining property by false pretenses. The trial
court sentenced defendant to three active terms of six to eight
months each, to run consecutively. The trial court also ordered
defendant to pay court costs, attorney fees, and $336.16 in
restitution as a condition of early release or work release.
Defendant stipulated to the underlying facts, that defendant
stole a credit card from his girlfriend's grandfather and used it
at various stores to make purchases in excess of $10,000.00. At
the plea hearing the State noted that only $336.16 of the total
amount of purchases remained to be paid to the victims after the
grandfather and his credit card company worked out the charges. Defense counsel noted, “We are pleased to know that whatever was
worked out with the company was worked out because he indicated to
me that it was $10,000 or more dollars so the [$]336 is a pleasant
surprise.”
Defendant argues the trial court erred by ordering defendant
to pay restitution because insufficient evidence was produced to
support the amount of restitution. The State argues that defendant
has failed to properly assign error to the restitution award. We
agree.
Appellate Rule 10 limits our review on appeal to “a
consideration of those assignments of error set out in the record
on appeal.” N.C. R. App. P. 10(a). Rule 10 provides that an
assignment of error must “state plainly, concisely, and without
argumentation the legal basis upon which error is assigned.” N.C.
R. App. P. 10(c)(1). A sufficient assignment of error will
“direct[] the attention of the appellate court to the particular
error about which the question is made.”
Id.
Defendant in his brief cites to two of his eleven assignments
of error. The remaining assignments of error not argued or brought
forward are deemed abandoned. N.C. R. App. P. 28(b)(6). The
assignments of error upon which defendant relies read as follows:
5. The trial court erred as a matter of law
in sentencing the defendant because the
sentence disposition is not authorized for the
defendant's class of offense and/or prior
record level.
. . .
8. The trial court erred in sentencing the
defendant to a disposition counter to the plea
agreement after having accepted the plea
terms.
Nothing in the language of these assignments of error directs this
Court's attention to the particular issue of the validity of the
amount of restitution. The word “restitution” is not used, nor do
the assignments of error even suggest that defendant might
challenge the restitution amount. The term “sentence disposition”
more properly refers to the prison time to be served by defendant,
not to the restitution he was ordered to pay.
See State v. Easter,
101 N.C. App. 36, 47, 398 S.E.2d 619, 625 (1990) (restitution is
meant to be compensatory, not punitive);
Black's Law Dictionary
1367 (7
th ed. 1999) (the word “sentence” means the punishment
imposed for a criminal conviction). Nor would either assignment of
error put the State on notice as to a legal argument challenging
the sufficiency of evidence to support the amount of restitution.
We therefore find defendant has failed to comply with the Rules of
Appellate Procedure.
It is well established that the Rules of Appellate Procedure
are mandatory, not optional.
Steingress v. Steingress, 350 N.C.
64, 65, 511 S.E.2d 298, 299 (1999). Failure to abide by the rules
may subject an appeal to dismissal, although other sanctions may
also be imposed.
State v. Hart, 361 N.C. 309, 644 S.E.2d 201
(2007);
see also Viar v. N.C. Dep't of Transp, 359 N.C. 400, 401,
610 S.E.2d 360, 360 (2005). We acknowledge our discretionary
authority to invoke Rule 2 of the Rules of Appellate Procedure to
excuse the rules violations and decide the case on the merits toprevent manifest injustice to a party.
Hart, 361 N.C. at 316, 644
S.E.2d at 205; N.C. R. App. P. 2. We do not find sufficient
reason, however, to excuse defendant's rules violations where
defendant has failed to put this Court and the State on notice as
to the particular legal argument he wished to raise. We therefore
decline to exercise our discretion to invoke Rule 2. Defendant's
appeal is dismissed.
Dismissed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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