State v. Greene

215 S.E.2d 629, 26 N.C. App. 342, 1975 N.C. App. LEXIS 2047

• Court: Court of Appeals of North Carolina
• Decided: June 18, 1975
• Docket: No. 7518SC214
• Status: Published

Opinion

BROCK, Chief Judge.

The State assigns as error (1) the district court’s quashing of the warrant and (2) the failure of the superior court to hear its appeal from the district court’s action.

G.S. 15-179 provides:

“When State may appeal. — An appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant—

“(6) Upon declaring a statute unconstitutional.”

“Under this statute, if the State’s right to appeal arises in the district court, the appeal is to the superior court; if it arises in the superior court, the appeal is to the appellate division.” State v. Greenwood, 12 N.C. App. 584, 586, 184 S.E. 2d 386 (1971), rev’d on other grounds, 280 N.C. 651, 187 S.E. 2d 8 (1972).

The superior court improperly refused to hear this case. It erred further in remanding the case to the district court “for the State to appeal direct to the appellate court.” This Court does not have jurisdiction of an appeal from the district court in a criminal case.

Appeal from the district court’s order is dimissed; the order of Judge Kivett is reversed, and the case is-remanded to the superior court for a hearing on the State’s appeal from the order of the district court.

Judges Clark and Arnold concur.