State v. Triplett

178 S.E.2d 38 (1970)

10 N.C. App. 165

STATE of North Carolina v. David TRIPLETT.

No. 7017SC645.

Court of Appeals of North Carolina.

December 16, 1970.

*39 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Henry T. Rosser, for the State.

Franklin Smith, Elkin, for defendant appellant.

VAUGHN, Judge.

Appellant contends that Surry Superior Court was without jurisdiction to hear this matter until the case from Judge Gambill's chambers could be heard by this Court on appeal. We disagree.

In State v. Triplett, 9 N.C.App. 443, 176 S.E.2d 399, this Court held:

"When the motion was made by the defendant to be returned to Surry County the statute required that he be returned. It was error for Judge Gambill to conduct a hearing and extend the period of probation and the order purporting to do so is hereby vacated."

The rule regarding appeals from void judgments is found in 1 Strong, N.C. Index, Appeal and Error, § 16, p. 137: "Notice of appeal from a void order does not take the cause out of the Superior Court, and the judge has power thereafter to enter a subsequent order in the cause." Since jurisdiction was not affected by notice of appeal, it remained in Wilkes Superior Court until transferred by Judge Gambill. This Court has already held that "[t]he order of Judge Gambill transferring the case to Surry County was proper." State v. Triplett, supra. Therefore, Surry Superior Court had jurisdiction in the matter.

Appellant also assigns as error the failure to quash the probation violation warrant and order for capias entered in Wilkes Superior Court, and the failure to grant his plea of former jeopardy. The probation violation warrant and order for capias was entered in response to appellant's request and was required by N.C. Gen.Stat. § 15-200. State v. Triplett, supra. Even if revocation of probation for breach of condition were properly the subject of a plea of former jeopardy, the defendant's plea was properly denied because, among other reasons, the hearing in Wilkes Superior Court was a nullity.

All of the appellant's remaining assignments of error pertain to the conduct of the hearing and to the alleged inadequacy of the evidence to support the judgment. We have carefully examined the record, and we find it free from prejudicial error. The findings of fact and the judgment entered thereon are adequately supported by the evidence.

Affirmed.

BROCK and MORRIS, JJ., concur.