State v. Ausley

338 S.E.2d 547, 78 N.C. App. 791, 1986 N.C. App. LEXIS 2014

• Court: Court of Appeals of North Carolina
• Decided: January 21, 1986
• Docket: No. 8510SC880
• Status: Published

Opinions

HEDRICK, Chief Judge.

Although neither the State nor defendant addresses this issue in their briefs, we must decide whether the State may appeal the dismissal of the charges.

The State had no right to appeal at common law and statutes granting this right to the State must be strictly construed. State v. Murrell, 54 N.C. App. 342, 283 S.E. 2d 173 (1981), disc. rev. denied, 304 N.C. 731, 288 S.E. 2d 804 (1982). G.S. 15A-1445, in pertinent part, provides as follows:

(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division:

(1) When there has been a decision or judgment dismissing criminal charges as to one or more counts.

In Murrell, the State appealed from the trial court’s order granting defendant’s motion for judgment as in case of nonsuit for insufficiency of the evidence pursuant to G.S. 15-173. In that case, this Court held that principles of double jeopardy barred further prosecution after a dismissal for insufficiency of the evidence and dismissed the appeal.

In the present case, defendant’s motion to dismiss was granted pursuant to G.S. 15A-1227, which provides:

(a) A motion for dismissal for insufficiency of the evidence to sustain a conviction may be made at the following times:

(4) After discharge of the jury without a verdict and before the end of the session.

A motion to dismiss pursuant to this statute tests the sufficiency of the evidence to sustain a conviction and, in that respect, is identical to a motion for judgment as in the case of nonsuit under G.S. 15-173. State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979). Therefore, we follow the decision in State v. Murrell and hold that defendant cannot now be placed in jeopardy again upon these same charges, and the State has no right of appeal from the judgment entered.

Appeal dismissed.

Judges Johnson and Phillips concur.