State v. Byrd

167 S.E.2d 95, 4 N.C. App. 494, 1969 N.C. App. LEXIS 1529

• Court: Court of Appeals of North Carolina
• Decided: April 30, 1969
• Docket: No. 6915SC8
• Status: Published

Opinion

Mallard, C.J.

The judgment and notice of appeal in these cases were entered as of 7 June 1968. The trial judge allowed each defendant fifty days in which to prepare and serve his case on appeal, and the State was given thirty days thereafter to file counter case or exceptions. No order extending the time for docketing the record on appeal was entered. The record on appeal for both defendants was docketed in this Court on 8 November 1968. This was more than sixty days too late, and therefore subject to dismissal. See Rules 5 and 48 of the Rules of Practice in the Court of Appeals. There was no order extending the time for docketing the record on appeal. For failure to docket the record on appeal within the time prescribed by the rules, this appeal should be dismissed.

It is appropriate here, and therefore, we will reiterate what this Court said in State v. Farrell, 3 N.C. App. 196, 164 S.E. 2d 388:

“The Rules of Practice in the Appellate Division of The General Court of Justice are mandatory, not directory, and must be uniformly enforced. Neither the judges, nor the solicitors, nor the attorneys, nor the parties have the right to ignore or dispense with the rule requiring docketing within the time prescribed. If the rules are not complied with, this Court may ex mero motu dismiss the appeal. Carter v. Board of Alcoholic Control, No. 519, Fall Term 1968, N. C. Supreme Court, filed 20 November 1968. And for failure to docket the record on appeal within the time prescribed by the rules, this appeal should be dismissed ex mero motu.”

Under date of 4 March 1969, defendant Byrd filed in the Superior Court of Alamance County a “Motion to Withdraw Appeal” in which he requests the Superior Court to permit him to withdraw his appeal pending in the Court of Appeals and which was set for hearing in the Court of Appeals on 11 March 1969. The judge presiding in the Superior Court of Alamance County on 4 March 1969 ordered that the defendant “be allowed to withdraw his appeal from the North Carolina Court of Appeals.” Under date of 6 March 1969, defendant’s counsel, in a letter addressed to the Clerk of this Court, said:

“Enclosed you will find a motion to the Superior Court Division to withdraw the appeal of James Ronald Byrd to the Court of Appeals together with an order allowing same.

Mr. Byrd has instructed me to ask you to allow him to withdraw his appeal.”

The Superior Court had no authority to permit or allow a defendant to withdraw an appeal to the Court of Appeals after the appeal is docketed here. However, we consider the letter from the defendant’s attorney to the Clerk of this Court with the enclosures therein as a motion by the defendant to withdraw his appeal, and in our discretion allow it.

We do not consider the bill of indictment or the charge of the court in this case as model ones; however, we have reviewed the record proper and are of the opinion .that there appears no error sufficiently prejudicial to the defendant Porter to justify a new trial.

Appeal withdrawn as to Defendant Byrd.

No error as to Defendant Porter.

Bbitt and PARKER, JJ., concur.