State v McAfee
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA02-467 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2002 STATE OF NORTH CAROLINA v. Buncombe County No. 00 CRS 63103 00 CRS 63105-06 TRAVIS EUGENE McAFEE, Defendant. Appeal by defendant from judgment entered 12 September 2001 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 28 October 2002. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Hall & Hall, by Douglas L. Hall, for defendant-appellant. EAGLES, Chief Judge. Travis Eugene McAfee ( defendant ) was charged with felony possession of cocaine, second degree trespass, and misdemeanor possession of marijuana. motion to suppress, After the trial court denied defendant s defendant pled guilty to the charges exchange for consolidation of the offenses for sentencing. in The trial court sentenced defendant to a minimum term of imprisonment of six months and a maximum term of eight months. suspended defendant s sentence probation for 36 months. and placed Defendant appeals. him The trial court on supervised -2For the following reasons, we grant the State s motion to dismiss the appeal. In order to appeal pursuant to G.S. ยง 15A-979(b) from an order denying a motion to suppress, a defendant must give notice of his intention to appeal to the prosecutor and the trial court before plea negotiations are finalized or his right of appeal will be waived. State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795 (1980). Defendant bears the burden of notifying the state and the trial court during plea negotiations of the intention to appeal the denial of a motion to suppress, or the right to do so is waived after a plea of guilty. State v. McBride, 120 N.C. App. 623, 625, 463 S.E.2d 403, 404 (1995), aff d, 344 N.C. 623, 476 S.E.2d 106 (1996). suppress. The notification must explicitly reference the motion to See, e.g., State v. Pimental, __ N.C. App. __, __, 568 S.E.2d 867, 870 (2002); State v. Stevens, __ N.C. App. __, __, 566 S.E.2d 149, 150 (2002). Here, the transcript of the motion hearing shows that at the conclusion of the hearing on the motion to suppress and the announcement of the trial court s decision, defendant s counsel stated that he would like to reserve our right to appeal that, Your Honor. However, the transcript of the subsequent plea proceeding contains no indication that defendant preserved his right to appeal from the denial of the motion to suppress before he pled guilty. The Transcript of Plea form also contains no notation that defendant gave notice of his intent to appeal. The -3 Transcript of Plea form simply states the following as terms and conditions of the plea: charges and the State The defendant will plead guilty to the agrees to consolidate the charges for sentencing. Furthermore, the record on appeal does not contain a notice of appeal. The record on appeal cites counsel s statement at the conclusion of the hearing on the motion to suppress as the notice of appeal. This statement could not serve as oral notice of appeal because at the time it was made, defendant had not pled guilty and judgment had not been entered. Based upon the record before us, we are constrained to conclude that defendant has not shown that he preserved his right to appeal from the order denying his motion to suppress. As we stated in Pimental, if defendant still desired to appeal after entering the plea, then he should have included language in the Transcript of Plea to indicate that he was preserving his right to appeal the denial of the motion to suppress. App. at __, 568 S.E.2d at 871. Pimental, __ N.C. Having failed to do so, defendant waived his right of appellate review as a matter of right. We therefore dismiss the appeal. Dismissed. Judges McCULLOUGH and HUDSON concur. Report per Rule 30(e).
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