46 N.C. App. 120 | N.C. Ct. App. | 1980
The State argues that, under the circumstances of this case, the Superior Court lacked authority to consider and allow defendant’s Motion for Appropriate Relief and order a new trial. We agree.
The following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment:
(6) Evidence is available which was unknown or unavailable to the defendant at the time of the trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.
It is clear that defendant’s Motion for Appropriate Relief is brought pursuant to G.S. § 15A-1415 and, specifically, subsection (b)(6) thereof. This statute is silent as to which court has jurisdiction to hear the motion.
However, the power of a court to act on a motion brought pursuant to G.S. § 15A-1415 in a case that has been appealed to the appellate division is specifically set forth in G.S. § 15A-1418(a) which provides:
When a case is in the appellate division for review, a motion for appropriate relief based upon grounds set out in G.S. 15A-1415 must be made in the appellate division. For the purpose of this section a case is in the appellate division when the jurisdiction of the trial court has been divested as provided in G.S. 15A-1448, . . .
See State v. Jones, 296 N.C. 75, 248 S.E. 2d 858 (1978). Since the case had been appealed from the Superior Court to the Court of Appeals, it is clear, therefore, that Superior Court Judge Reid had no authority to consider defendant’s Motion for Appropriate Relief and order a new trial.
Order vacated and cause remanded.
