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[T] State v. Lewis4/6/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Defendant, Hilton Lee Lewis, presents the following issue for our consideration: Whether the trial court erroneously entered judgment for restitution in a manner contrary to applicable law? As this Court lacks jurisdiction to review Defendant's contention, we dismiss his appeal.
In this case, Defendant pled guilty to assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, and driving while impaired. The court consolidated the assault convictions and sentenced defendant to a minimum term of 42 months and a maximum term of 60 months, with a concurrent sentence of 12 months for the driving while impaired conviction. The court also recommended that, as a condition of post-release supervision orwork release, defendant pay the sum of $30,812.28 as restitution.
Defendant's sole challenge is that the recommendation of restitution was not based on competent evidence; however, we do not reach this issue because we hold that this appeal must be dismissed.
"In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute." State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002). A defendant who has entered a plea of not guilty and who is found guilty of a crime is entitled to appeal as a matter of right. N.C. Gen. Stat. § 15A-1444(a)(2001). However, a defendant who pleads guilty or no contest to a crime limits his right of appeal to the following issues: (1) whether the sentence is supported by the evidence but only if the minimum term of imprisonment does not fall within the presumptive range; (2) whether the sentence results from an incorrect finding of the defendant's prior record level under G.S. § 15A-1340.14 or the defendant's prior conviction level under G.S. § 15A-1340.21; (3) whether the sentence contains a type of sentence disposition that is not authorized by G.S. § 15A-1340.17 or G.S. § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (4) whether the sentence contains a term of imprisonment that is for a duration not authorized by G.S. § 15A-1340.17 or G.S. § 15A-1340.23 for the defendant's class of offense and prior record or conviction level; (5) whether the trial court improperly denied defendant's motion to suppress; and (6) whether the trial court improperly denied defendant's motion towithdraw his guilty plea. State v. Jamerson, N.C. App. , 588 S.E.2d 545, 546-47 (2003). None of these issues or criteria is presented in the case at bar. Therefore, defendant does not have a right of appeal.
We also are not able to review the issue by a writ of certiorari. Our ability to issue a writ of certiorari is limited to the following situations, none of which is present in the case at bar: (1) when the right of appeal has been lost by failure to take timely action; (2) when the order of which review is sought is not final; or (3) when the order of which review is sought denied a post-conviction motion for appropriate relief. State v. Dickson, 151 N.C. App. 136, 137-38, 564 S.E.2d 640, 640 (2002).
Although we must dismiss defendant's appeal for lack of jurisdiction, we note that defendant has a possible remedy in seeking post-trial relief in the form of a motion for appropriate relief filed in the trial tribunal. State v. Jamerson, N.C. App. at , 588 S.E.2d at 547.
Dismissed.
Judges HUNTER and McCULLOUGH concur.
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