State v. McCoy

615 S.E.2d 319, 171 N.C. App. 636, 2005 N.C. App. LEXIS 1319

• Court: Court of Appeals of North Carolina
• Decided: July 19, 2005
• Docket: COA04-209
• Status: Published

Opinions

STEELMAN, Judge.

On 15 September 2003, defendant appeared before the Superior Court of Guilford County, along with his court-appointed counsel, Thomas Maddox, concerning motions defendant had filed pro se. Defendant was in custody at the time of the hearing. When defendant was leaving the courtroom following the hearing, he stated to Julia Hejazi, the assistant district attorney, “you’re going down.” The trial judge found defendant to be in direct contempt of court and sentenced him to thirty days in the county jail. The order was reduced to writing and entered on 15 September 2003, with a copy delivered to defendant at the jail on 18 September 2003. Defendant gave notice of appeal on 13 October 2003.

We first consider the State’s motion to dismiss defendant’s appeal for failure to give notice of appeal within fourteen days from the entry of the order holding him in contempt as required by Rule 4(a)(2) of the North Carolina Rules of Appellate Procedure. Defendant freely acknowledged that the notice of appeal was not timely given. In a footnote to his Statement of Facts, defendant states the following:

Defendant acknowledges that notice of appeal was given outside of the 14-day period set by N.C. Rule of Appellate Procedure 4(a)(2). Defendant asserts, however, that the delay was due to the denial of his constitutional and statutory right to counsel and the summary nature of the contempt proceeding, as discussed in arguments I and II below. If this Court does not recognize defendant’s notice of appeal, defendant respectfully requests this Court consider this brief as a Petition for a Writ of Certiorari and consider the issues raised on their merits.

We note that when a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal. See State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411 (1991). See also Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005). Rule 27(c) of the Rules of Appellate Procedure prohibits this Court from granting defendant an extension of time to file his notice of appeal since compliance with the requirements of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by this Court. See O’Neill v. Bank, 40 N.C. App. 227, 230, 252 S.E.2d 231, 233-34 (1979).

While this Court cannot hear defendant’s direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari. “The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, . . . .” N.C. R. App. P. 21(a). This rule goes on to specify the contents of a petition for writ of certiorari:

The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the reasons why the writ should issue; and certified copies of the judgment, order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. The petition shall be verified by counsel or the petitioner. Upon receipt of the prescribed docket fee, the clerk will docket the petition.

N.C. R. App. P. 21(c) (2005).

The footnote contained in appellant’s brief clearly does not meet the requirements set forth in Rule 21(c). “The North Carolina Rules of Appellate Procedure are mandatory and ‘failure to follow these rules will subject an appeal to dismissal.’ ” Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 360 (2005). In order to correct the deficiencies in defendant’s purported petition for writ of certiorari, we would have to invoke the provisions of Rule 2 of the Rules of Appellate Procedure.

The authority granted in Rule 2 is discretionary. State v. Owens, 160 N.C. App. 494, 498, 586 S.E.2d 519, 522 (2003) (citing to N.C. R. App. P. 2). The provisions of Rule 21 are also discretionary. State v. Ager, 152 N.C. App. 577, 585, 568 S.E.2d 328, 333 (2002) (citing Stale v. Grundler and State v. Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)).

We decline to exercise our discretion under Rule 2 to correct the defects in defendant’s purported petition for writ of certiorari. In addition, we further decline to exercise our discretion and deny defendant’s purported petition for writ of certiorari. “It is not the role of the appellate courts ... to create an appeal for an appellant.” Viar, 359 N.C. at 402, 610 S.E.2d at 361.

The State’s motion to dismiss defendant’s appeal is granted.

APPEAL DISMISSED; PETITION FOR WRIT OF CERTIORARI DENIED.

Judge CALABRIA concurs. Judge GEER dissents.