State v. Weiderman, 19 N.C. App. 753 (1973)

Nov. 14, 1973 · North Carolina Court of Appeals · No. 7327SC781

19 N.C. App. 753

STATE OF NORTH CAROLINA v. RONALD WEIDERMAN C/O MAJOR LEAGUE LANES, INC.

No. 7327SC781

(Filed 14 November 1973)

Criminal Law § 18 — judgment for defendant on motion to quash — appeal to Superior Court — jurisdiction of Superior Court

Where the State was properly allowed to appeal to the Superior Court from the judgment of the District Court which gave judgment for defendant upon defendant’s motion to quash, and the Superior Court entered an order reversing the allowance of the motion to quash, the case should remain in the Superior Court for trial de novo, since the State’s appeal gave the Superior Court the same jurisdiction as the District Court had in the first instance. G.S. 15-179(3); G.S. 7A-271(b).

Appeal by defendant from Friday, Judge, 21 August 1973 Session of Superior Court held in Gaston County.

Defendant was charged with a violation of an ordinance of the City of Gastonia. The District Court allowed defendant’s motion to quash, and the State appealed to the Superior Court where an order was entered reversing the allowance of the motion to quash and remanding the case to the District Court for trial. Defendant gave notice of appeal.

Attorney General Robert Morgan by Millard R. Rich, Jr., Assistant Attorney General; Mullen, Holland & Harrell, P.A. by Graham C. Mullen, attorneys for the State.

Sanders & LaFar by W. Marshall LaFar for defendant appellant.

VAUGHN, Judge.

In criminal cases defendant may appeal to the Appellate Division from convictions in the Superior Court. G.S. 15-180. A defendant may not appeal from an order denying a motion to quash an indictment or warrant. State v. Baker, 240 N.C. 140, 81 S.E. 2d 199.

On our own motion, we modify that part of the order of the Superior Court Judge which directs that the case be remanded to the District Court for trial. The State was properly allowed to appeal to the Superior Court from the judgment of the District Court which gave judgment for defendant upon defendant’s motion to quash. G.S. 15-179(3). The appeal by the State from the District Court to the Superior Court gave the Superior Court the same jurisdiction as the District Court had in the first instance. G.S. 7A-271(b). The case remains in the Superior Court for trial de novo.

Appeal dismissed.

Judges Morris and Parker concur.