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State v. Shoff5/16/1995
MARTIN, MARK D., Judge.
Defendant was charged with driving while impaired. On 17 November 1993 he was found guilty in District Court of Buncombe County, and he appealed to superior court. Defendant's case was called for trial on 3 January 1994. A jury was empaneled and the State presented two witnesses. Following recess of the trial for the day, three to six inches of snow fell in Buncombe County. Defendant's attorney and several of the jurors were unable to return to court on the next day. Defendant's case was rescheduled for trial on 6 January 1994, and was empaneled with a different jury. Defendant objected to the new jury. Because of the inability of the original jury to return to complete the case, Judge Allen declared a mistrial, and the case was continued until 23 February 1994. Defendant then moved to dismiss the charge on the ground of double jeopardy. Defendant's motion was denied, and he gave notice of appeal.
On appeal defendant contends the trial court erred in denying his motion to dismiss the charge of driving while impaired after defendant pled the bar of double jeopardy.
We must first determine whether a statutory right to appeal exists in the present case. Defendant contends this issue has not been preserved for appellate review. The duty of an appellate court to dismiss an appeal for lack of jurisdiction is not contingent upon whether the issue has been preserved for appellate review. See Waters v. Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978); Pasour v. Pierce, 46 N.C. App. 636, 639, 265 S.E.2d 652, 653 (1980).
The right to appeal in a criminal proceeding is purely statutory. Abney v. United States, 431 U.S. 651, 656, 52 L. Ed. 2d 651, 658, 97 S. Ct. 2034 (1977). Generally, there is no right to appeal in a criminal case except from a conviction or upon a plea of guilty. State v. Howard, 70 N.C. App. 487, 488, 320 S.E.2d 17, 18 (1984) (quoting State v. Webb, 155 N.C. 426, 430, 70 S.E. 1064, 1065-1066 (1911)). The order of the trial court denying defendant's motion to dismiss is not a final judgment and is, therefore, interlocutory. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381-382, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). We conclude defendant's appeal should be dismissed because it arises from a nonappealable interlocutory order.
Section 15A-1444(d) of the Criminal Procedure Act, enacted in 1977, provides the exclusive statutory authority for appeals in criminal proceedings:
Procedures for appeal to the appellate division are as provided in this Article , the rules of the appellate division, and Chapter 7A of the General Statutes. The appeal must be perfected and conducted in accordance with the requirements of those provisions.
N.C. Gen. Stat. § 15A-1444(d) (1988)(emphasis added). Under the North Carolina Rules of Appellate Procedure an appeal may be had by "any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action . . . ." N.C.R. App. P. 4(a). Chapter 7A limits appeals in criminal proceedings to those taken from a final judgment. N.C. Gen. Stat. § 7A-27(b)(1989). Likewise, Chapter 15A limits appeals in criminal actions to those taken from a final judgment. See N.C. Gen. Stat. §§ 15A-1444(a), et seq. ; but see N.C. Gen. Stat. § 15A-1432(d)-(e) (statutor
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