Opinion
No. COA12–229.
2012-09-18
STATE of North Carolina v. Devine THORPE, Defendant.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General John J. Aldridge III, for the State. Heather L. Rattelade, for defendant-appellant.
Appeal by defendant from order entered 28 July 2011 by Judge Orlando Hudson in Superior Court, Durham County. Heard in the Court of Appeals 27 August 2012. Attorney General Roy A. Cooper III, by Special Deputy Attorney General John J. Aldridge III, for the State. Heather L. Rattelade, for defendant-appellant.
STROUD, Judge.
On 2 February 2011, defendant Devine Thorpe (“defendant”) was indicted in Durham County on one count of felonious breaking and/or entering and one count of conspiracy to commit felonious breaking and entering. On 25 April 2011, defendant moved to suppress certain statements he made to investigating officers, alleging that they were taken in violation of his Fourth, Fifth, Sixth and Fourteenth Amendment rights. The trial court held a suppression hearing on defendant's motion on 29 June 2011. The trial court denied defendant's motion to suppress orally at the hearing and by a written order on 28 July 2011. Defendant did not give oral notice of appeal at the suppression hearing.
On 3 August 2011, defendant pleaded guilty to both counts of the indictment, reserving his right to appeal the denial of his motion to suppress. Defendant was sentenced on 9 August 2011 to a five-month suspended sentence, fifty hours of community service, and other special conditions. Defendant gave timely written notice of his intent to appeal on 8 August 2011. SeeN.C. R.App. P. 4(a).
In that written notice, defendant specifically appeals “the Order Denying the Motion to Suppress entered on or about July 28, 2011.” Defendant's written order does not specify that he is appealing the judgment of the trial court. Additionally, defendant did not give oral notice of appeal of the judgment at the plea hearing on 9 August 2011. In that hearing, defendant's attorney specifically stated that the appeal was from the denial of the motion to suppress. Indeed, the trial court specifically inquired about the scope of appeal, which defendant's counsel said “was limited.”
THE COURT: All right. The Defendant gives notice of appeal of the denial of the motion to suppress in this case....
THE COURT: I guess you're basically appealing the whole thing, aren't you, when you're appealing that?
[DEFENSE COUNSEL]: It's the denial, and we had about a day long—....
[DEFENSE COUNSEL]: ... it's not really an appeal of the entire case ... it's limited.
Where a criminal defendant appeals from the denial of a motion to suppress after which he pleaded guilty, this Court only has jurisdiction if the defendant appeals the trial court's judgment. State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 542 (2010); N.C. Gen.Stat. § 15A–979(b) (2009) (stating that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” (emphasis added)). Since defendant does not appeal the trial court's judgment in the case sub judice, we have no jurisdiction to hear his appeal and it must be dismissed. See Miller, 205 N.C.App. at 725, 696 S.E .2d at 542.
DISMISSED. Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).