State v. Ferrell

260 S.E.2d 808, 44 N.C. App. 374, 1979 N.C. App. LEXIS 3240

• Court: Court of Appeals of North Carolina
• Decided: December 18, 1979
• Docket: No. 798SC670
• Status: Published

Opinion

HEDRICK, Judge.

Initially, we must address the question of whether this Court has jurisdiction to hear this appeal. The defendant received a sentence of ten years to life in prison. G.S. § 7A-27 (1977 Supp.) provides in pertinent part:

(a) From a judgment of a superior court which includes a sentence of death or imprisonment for life, unless the judgment was based on a plea of guilty or nolo contendere, appeal lies of right directly to the Supreme Court.

Our inquiry is thus narrowed to the question of whether a sentence of ten years to life is a sentence of life imprisonment so as to bring § 7A-27(a) into play, thereby divesting this Court of jurisdiction. It is our opinion, and we so hold, that any sentence under which the defendant may serve for life, as here, is a sentence to life imprisonment. State v. Norwood, 44 N.C. App. 174, 260 S.E. 2d 433 (1979). We have no jurisdiction to hear this case. Appeal dies directly to the Supreme Court.

Our holding will not be altered by the fact that this Court issued its writ of certiorari to review defendant’s trial. It is elementary that the jurisdiction of the Court is established by statute, not the Court’s own order. Our writ was improvidently granted, and the matter must be dismissed.

Dismissed.

Judge Wells concurs. Judge MARTIN (Robert M.) dissents.