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North Carolina v. Rannels6/4/1993
eliberation. The underlying felony submitted to the jury on the felony murder theory was armed robbery.
The jury also returned verdicts finding defendant guilty of armed robbery and conspiracy to commit robbery.
As to the murder and armed robbery conviction, therefore, the merger rule has no application; and it was proper for the trial court to sentence defendant on both the murder conviction and the armed robbery conviction. State v. Fields, 315 N.C. 191, 337 S.E.2d 518.
IX.
Finally defendant asks us to allow a motion for appropriate relief by which he seeks a new sentencing hearing in the armed robbery case. We conclude this motion must first be determined in the Superior Court where it was filed when that court still had jurisdiction over the case.
Defendant's motion for appropriate relief was filed in the trial court on 30 August 1989 after his notice of appeal was given on 22 August 1989. The judgments against defendant in all cases were also entered on 22 August 1989. On 15 October 1990 Judge Frank R. Brown ordered that a hearing be held in Superior Court, Pitt County on defendant's motion.
It is only when a case is pending in the appellate division that a motion for appropriate relief is cognizable here. N.C.G.S. § 15A-1418(a). A case is deemed to be pending in the appellate division "when the jurisdiction of the trial court has been divested as provided in G.S. 15A-1448, or when a petition for writ of certiorari has been granted." Id. Section 15A-1448 of the North Carolina General Statutes provides:
(a) Time for Entry of Appeal; Jurisdiction over the case. --
(1)
A case remains open for the taking of an appeal to the appellate division for a period of 10 days after the entry of judgment.
(2)
When a motion for appropriate relief is made during the 10-day period, the case remains open for the taking of an appeal until the expiration of 10 days after the court has ruled on the motion.
(3)
The jurisdiction of the trial court with regard to the case is divested, except as to actions authorized by G.S. 15A-1453, when notice of appeal has been given and the period described in (1) and (2) has expired.
At the time defendant's motion for appropriate relief was filed in the trial court the jurisdiction of the trial court had not been divested under N.C.G.S. § 15A-1448(a)(3). The case, therefore, was not then pending in the appellate division as provided by N.C.G.S. § 15A-1418. Since the case was not then pending in the appellate division, the motion is not properly cognizable here. It must first be determined in the trial court which had jurisdiction over it when it was filed and as Judge Brown recognized when he ordered that it be heard in the Superior Court.
The result is:
NO ERROR.
Justices MEYER and PARKER did not participate in the consideration or decision of this case.
89-CRS-14550--murder in the first degree-- no error.
89-CRS-15038 -- conspiracy to commit armed robbery -- no error.
89-CRS-14551 -- robbery with a dangerous weapon -- no error.
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