State v. Norwood

260 S.E.2d 433, 44 N.C. App. 174, 1979 N.C. App. LEXIS 3176

• Court: Court of Appeals of North Carolina
• Decided: December 4, 1979
• Docket: No. 799SC573
• Status: Published

Opinions

WEBB, Judge.

At the outset we are faced with the question of the jurisdiction of this Court to hear the appeals in the burglary and rape cases. The defendant received a sentence in those cases of from ten years to life in prison. G.S. 7A-27 says:

(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.

The question with which we are faced is whether a sentence of from ten years to life is a sentence of imprisonment for life so that an appeal must be taken to the Supreme Court of North Carolina. We hold that this is a sentence of imprisonment for life within the meaning of the statute. It is true that the defendant may not serve for life under this sentence. This is so in any sentence of life imprisonment. We hold that when a defendant may serve for life under a sentence, this is a sentence to life imprisonment and appeal lies directly to the Supreme Court. We have no jurisdiction to hear the cases involving burglary and rape and the appeal as to these two charges must be dismissed.

As to the charge of common law robbery, the defendant by his only assignment of error contends there was not sufficient evidence of taking and carrying away the property of the prosecuting witness to be considered by the jury. The State’s evidence tended to show the defendant took $4.30 from the prosecuting witness, but did not leave her home with it. This is sufficient evidence of asportation for the jury to convict defendant of common law robbery. State v. Walker, 6 N.C. App. 740, 171 S.E. 2d 91 (1969).

Appeal dismissed as to 78CRS5197 and 78CRS5200.

No error as to 78CRS5198.

Judge VAUGHN concurs. Judge MARTIN (Harry C.) dissents.