Opinion
No. COA11–1177.
2012-04-17
STATE of North Carolina v. Michael Paul MILLER.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. William Trippe McKeny, for Defendant.
Appeal by Defendant from order entered 6 April 2011 by Judge Joseph Crosswhite in Rowan County Superior Court. Heard in the Court of Appeals 16 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. William Trippe McKeny, for Defendant.
BEASLEY, Judge.
Michael Paul Miller (Defendant) was indicted on 3 August 2009 on charges of possession with intent to sell or deliver marijuana; maintaining a place for keeping, selling and or using controlled substances; and carrying a concealed gun. A hearing upon motions to suppress was conducted by Judge Joseph N. Crosswhite commencing on 4 April 2011. After the hearing concluded, Judge Crosswhite dictated an order in open court on 6 April 2011 allowing the motions in part and denying them in part. Defendant filed a notice of appeal on 8 April 2011 but did not identify an order from which appeal was taken. Defendant subsequently pled guilty to the charges on 23 May 2011 and reserved his right to appeal the decision upon the motions to suppress. On 24 May 2011, Defendant filed notice of appeal “as counsel for defendant did in open court on May 23, 2011, regarding the judgment on the suppression motion, which was entered on May 23, 2011, in Rowan County Superior Court before the Honorable Judge Crosswhite, to the North Carolina Court of Appeals.” On 25 May 2011, Defendant filed an amended notice of appeal which was identical to the notice filed the previous day except the amended notice supplied the judge's first name.
To bring forward an appeal pursuant to N.C. Gen.Stat. § 15A–979(b) from an order denying a motion to suppress, a defendant must give notice of appeal from the final judgment entered upon the conviction. State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 543 (2010). Without such notice of appeal, we lack jurisdiction and we must dismiss the appeal. Id. The written notices of appeal at bar fail to reference any judgment entered upon a conviction. Moreover, Defendant has not supplied this Court with the transcript of the sentencing hearing; therefore, we are not able to determine whether Defendant gave notice of appeal in open court from the judgment of conviction. It is incumbent upon a criminal defendant to provide this Court with a proper record of oral notice of appeal or the appeal is subject to dismissal. State v. Parker, ––– N.C.App. ––––, ––––, 713 S.E.2d 770, 772 (2011). Defendant also has failed to include in the record on appeal all of the judgments entered upon his guilty plea, having included only the judgment entered upon the conviction of carrying a concealed gun. The judgment in a criminal case is a necessary part of the record on appeal and the failure to include a necessary document makes the appeal subject to dismissal. See, e.g., State v. Harvell, 45 N.C.App. 243, 246, 262 S.E.2d 850, 852 (1980); State v. Gilliam, 33 N.C.App. 490, 491, 235 S.E.2d 421, 422 (1977). We accordingly dismiss the appeal.
Dismissed. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).