State v Green
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-135 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 STATE OF NORTH CAROLINA v. Swain County No. 09 CRS 1134 DENNIS DAVID GREEN Appeal by Defendant from judgment dated 15 August 2011 by Judge Marvin Pope in Swain County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State. Hunt Law Group, P.C., by James A. Hunt, for Defendant. STEPHENS, Judge. In August 2010, Defendant Dennis David Green pled guilty to one charge of assaulting a government official. The trial court imposed a 150-day prison sentence, which was suspended subject to a supervised probation period of 36 months. 2011, report Green s probation alleging probation. that officer Green had filed a violated On 27 April probation the violation terms of his At a probation violation hearing in Swain County -2Superior Court, the Honorable Marvin Pope presiding, Green waived his right to counsel, represented himself, and admitted that he had willfully violated the terms and conditions of his probation without just or valid excuse. court revoked sentence. On allowing hearing Green s probation and As a result, the trial activated his suspended Green appeals. appeal, him to without Green argues proceed pro conducting a that se the at trial the proper court probation inquiry erred in revocation under N.C. Gen. Stat. ยง 15A-1242 and determining whether his waiver of the right to counsel was knowing and voluntary. However, this Court cannot reach the merits of Green s appeal because there is no evidence in the record before us showing that Green gave proper notice of appeal from the judgment revoking his probation and activating his sentence. A party may appeal the judgment or order of a superior court in a criminal case by (1) giving oral notice of appeal at trial, superior or (2) court filing and notice serving of copies appeal thereof with upon the all clerk of adverse parties within fourteen days after entry of the judgment or order. N.C. R. App. P. 4(a)(1),(2). Additionally, the record on appeal in criminal actions must contain a copy of the notice -3of appeal or an appropriate entry or statement showing appeal taken orally. N.C. R. App. P. 9(a)(3)(h). Our review of the record on appeal and the transcript of the probation revocation hearing reveals no evidence that Green gave oral notice of appeal. Further, contain any written notice of appeal. the record does not In his appellate brief, Green states that he wrote the trial court stating that he wanted to appeal the judgment. However, that writing is not in the record, and, more importantly, there is nothing to show that the writing was filed with the clerk of superior court and served on the adverse party as required by Rule 4. N.C. R. App. P. 4(a)(2). While the record contains an Appellate Entries form that indicates notice of appeal was given, this Court has held that such a form is insufficient to satisfy Rule 4. State v. Hughes, __ N.C. App. __ , __, 707 S.E.2d 777, 779 (2011) ( [T]he fact that the record contains appellate entries does not, without appealed from more, the suffice trial to show court s that judgment Defendant to this properly Court. ). Because Green has failed to show that he gave proper notice of appeal as required by Rule 4, this Court lack[s] jurisdiction to consider [his] appeal, which must, therefore, be dismissed. Id. -4DISMISSED. Judges BRYANT and THIGPEN concur. Report per Rule 30(e).
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