Opinion
No. COA00-644
Filed 20 February 2001
Appeal by defendant from judgments entered 24 September 1999 by Judge Victoria L. Roemer in Forsyth County District Court. Heard in the Court of Appeals 5 February 2001.
Attorney General Michael F. Easley, by Associate Attorney General Christopher W. Brooks, for the State.
Lawrence J. Fine for defendant-appellant.
**NOT FINAL**
Defendant appeals the Forsyth County District Court's 24 September 1999 judgments revoking his probation and activating his previously suspended sentences of ten consecutive ten-month minimum and twelve-month maximum terms of imprisonment. We conclude defendant's appeal must be dismissed.
Although the issue has not been raised by the parties, "we are obliged first to consider sua sponte whether defendant's appeal is properly before this Court." Russell v. State Farm Ins. Co., 136 N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation omitted). The sole statute authorizing appeal of revocation of a probationary judgment by the district court, N.C.G.S. § 15A-1347 (1999), provides as follows:
When a district court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, the defendant may appeal to the superior court for a de novo revocation hearing.
(Emphasis added.) In addition, N.C.G.S. § 7A-271(b) (1999) provides in pertinent part that "[a]ppeals by the State or the defendant from the district court [in criminal actions] are to the superior court."
The indisputable purport of the foregoing statutes is that appeal to this Court under the circumstances sub judice would be proper only after activation of a suspended probationary sentence by the superior court upon de novo review following appeal of the revocation of said probationary sentence by the district court. See G.S. § 15A-1347; G.S. § 15A-347 7A-271(b); see also N.C.G.S. § 7A-26 (1999) (establishing appellate jurisdiction of Court of Appeals); N.C.G.S. § 7A-27 (1999) (delineating appeals of right from the trial court division).
In short, as in State v. Killian, 25 N.C. App. 224, 225, 212 S.E.2d 419, 420 (1975) ("constitutional and statutory structure of our General Court of Justice" directs that "appeals in criminal causes [from the district court] must go first to the superior court"), defendant's "appeal, ex mero motu, [must be] dismissed," id.; see also State v. Golden, 40 N.C. App. 37, 40, 251 S.E.2d 875, 877 (1979) ("[n]o appeal lies to Court [of Appeals] from an order or judgment entered in a criminal action in the District Court").
Appeal dismissed. Judges GREENE and WALKER concur.