State v. Hawley, 23 N.C. App. 223 (1974)

Oct. 2, 1974 · North Carolina Court of Appeals · No. 749SC574

23 N.C. App. 223

STATE OF NORTH CAROLINA v. FRANKLIN HAWLEY

No. 749SC574

(Filed 2 October 1974)

Criminal Law §§ 18, 157— misdemeanor — failure to show jurisdiction of superior court

Appeal is dismissed for failure of the record to show how the superior court obtained jurisdiction of a misdemeanor tried upon a warrant of the district court.

Appeal by defendant from Bailey, Judge, February 1974 Criminal Session of Granville Superior Court.

The record filed indicates that defendant was tried in the Superior Court on warrants charging him with the misdemeanors of reckless driving and driving while his operator’s license was revoked. The solicitor took a nol pros, with leave on the charge of reckless driving. Defendant was found guilty of driving while his license was revoked and was sentenced to be imprisoned for two years.

Attorney General Carson, by Assistant Attorney General Raymond W. Dew, Jr. and Associate Attorney John R. Morgan, for the State.

Smith & Banks, for defendant appellant.

MARTIN, Judge.

There is nothing in the record to disclose how the superior court obtained jurisdiction of this case. “The Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed from.” State v. Byrd, 4 N.C. App. 672, 673, 167 S.E. 2d 522 (1969). It is the duty of the defendant appellant to see that the record on appeal is properly made up and transmitted to the Court of Appeals. State v. Parks, 20 N.C. App. 207, 200 S.E. 2d 837 (1973) ; State v. Marshall, 11 N.C. App. 200, 180 S.E. 2d 464 (1971) ; State v. Byrd, supra. The superior court has no jurisdiction to try an accused for a misdemeanor upon a warrant of the district court unless he is first tried and convicted for such misdemeanor in the district court and appeals to the superior court from the sentence imposed in the district court. State v. Parks, supra; State v. Marshall, supra; State v. Byrd, supra. For failure to show jurisdiction, the appeal must be dismissed. State v. Banks, 241 N.C. 572, 86 S.E. 2d 76 (1955); State v. Marshall, supra.

Appeal dismissed.

Chief Judge Brock and Judge Morris concur.