Opinion
No. 7022SC384
Filed 5 August 1970
Criminal Law 154 — case on appeal — extension of time — improper signing of order Criminal appeal is subject to dismissal when the order granting the extension of time to serve the case on appeal was not signed by the trial judge who signed the original order appealed from. Rules of Practice in the Court of Appeals Nos. 5 and 50.
APPEAL by defendant from Martin (Robert M.), S.J., 19 January 1969 Session of IREDELL County Superior Court.
Attorney General Robert Morgan by Staff Attorney L. Philip Covington for the State.
Paul Swanson for defendant appellant.
Defendant pleaded guilty to a charge of breaking and entering. He was sentenced to serve not less than 8 nor more than 10 years. Sentence was suspended and defendant placed on probation for 5 years, subject to the conditions set out in the probation judgment.
Defendant's probation was revoked after a hearing on 5 February 1968, and defendant served until 10 January 1969 on his original sentence. On 10 January 1969, a post-conviction hearing was held resulting in a finding that defendant's constitutional rights had been violated at the hearing when his probation was revoked because he had not been advised of his right to counsel. The revocation order was set aside and defendant released from custody subject to a rehearing when a bill of particulars was filed. A rehearing was never held subject to that order. Defendant later was found to have violated the provisions of the original probation judgment when he was arrested on 19 September 1969 for driving under the influence and while his license was suspended. On 8 December 1969, defendant entered a plea of guilty in each of these cases and received sentences. As a result of these convictions, defendant's probation under the original judgment was revoked and his original sentence reinstated, with credit allowed for the year he had served. This order was dated 19 December 1969, was signed by Robert M. Martin, presiding judge, and is the basis of this appeal. Defendant's former attorney was permitted to withdraw from the case on 18 March 1970, and his present attorney was as pointed on 19 March 1970. Both of these orders were signed by Robert A. Collier, Jr., Resident Judge. On 19 March 1970, Judge Collier also signed an order granting defendant an extension of time within which to prepare his case on appeal. The case on appeal was filed within the time permitted by the extension.
The order granting the extension of time to serve the case on appeal was not signed by the trial judge who signed the order which is the basis of this appeal as required by Rules 5 and 50 of the Rules of Practice in the Court of Appeals of North Carolina. The appeal is, therefore, subject to dismissal.
We have nevertheless examined defendant's assignments of error and are of the opinion that they are without merit.
Appeal dismissed.
BROCK and GRAHAM, JJ., concur.