11 N.C. App. 423 | N.C. Ct. App. | 1971
Defendant assigns as error the action of the trial judge in dismissing the appeal and remanding the case to the district court for compliance with the judgment entered there. Defendant contends that, although he did not appear in superior court when his case was called, the trial judge was without authority to dismiss his appeal and remand the case to the district court.
G.S. 7A-290 provides:
“ . . . Any defendant convicted in district court before the judge may appeal to the superior court for trial de novo. Notice of appeal may be given orally in open court, or to the clerk in writing within 10 days of entry of judgment. Upon receiving notice of appeal, the clerk shall transfer the case to the . . . superior court criminal docket. . . . ”
“ . . . When an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose. ...” (Emphasis added.) State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970). See also State v. Anderson, 5 N.C. App. 614, 169 S.E. 2d 38 (1969) and State v. Goff, 205 N.C. 545, 172 S.E. 407 (1934).
An appeal from a conviction in an inferior court entitles the defendant to a trial de novo in the superior court as a matter of right; and this is true even when an accused pleads guilty in the inferior court. State v. Sparrow, supra; State v. Broome, 269 N.C. 661, 153 S.E. 2d 384 (1967). Where the appeal has been docketed in the superior court, the judge presiding, at term, has the authority, upon satisfactory cause shown and with the consent of the defendant, to remand the case to the inferior court for clarifying judgment or other proceedings. This would reinstate the case and revest the inferior court with jurisdiction. State v. Cox, 216 N.C. 424, 5 S.E. 2d 125 (1939).
Where, as here, the defendant neither appears in court when his case is called nor consents to dismissal of his appeal, the trial judge is without authority to dismiss the appeal and remand the case to the district court for compliance with the
For the reasons stated, the order of the trial judge dismissing the appeal and remanding the case to the district court is reversed and the cause is remanded to the superior court for trial.
Reversed and remanded.
