State v. Hopkins, 24 N.C. App. 687 (1975)

Feb. 19, 1975 · North Carolina Court of Appeals · No. 749SC862

24 N.C. App. 687

STATE OF NORTH CAROLINA v. BENNIE HOPKINS and ROOSEVELT MORRISON KELLUM

No. 749SC862

(Filed 19 February 1975)

1. Criminal Law § 155.5— failure to docket record in apt time

Appeal is dismissed for failure to docket the record on appeal within 90 days from the date of the judgment appealed from where the record on appeal contains no order extending the time for docketing. Court of Appeals Rule 5.

2. Criminal Law § 155.5— extension of time to serve case on appeal — no extension of time to docket

An order extending the time within which to serve the case on appeal does not have the effect of extending the time to docket the appeal.

Appeal by defendants from Bailey, Judge. Judgments entered 2 May 1974 in Superior Court, Franklin County. Heard in the Court of Appeals 14 January 1975.

Each defendant was charged in separate bills of indictment, proper in form, with the felony of armed robbery. On motion of the District Attorney and without objection by the defendants, the cases were consolidated for trial, and each defendant pled not guilty. The jury found each defendant guilty, and from judgments, entered, on the verdicts, each defendant gave notice of appeal.

Attorney General Edmisten by Assistant Attorney General Charles M. Hensey for the State.

Hubert H. Senter for defendant appellant Bennie Hopkins.

Charles M. Davis for defendant appellant Roosevelt Morrison Kellum.

PARKER, Judge.

[1] The judgments appealed from are dated 2 May 1974. The record on appeal was docketed in this Court on 23 September 1974, which was more than 90 days after the date of the judgments. The record pn appeal contains no order extending the time for docketing. Rule 5, Rules of Practice in the Court of Appeals, requires that a record on appeal, absent an order extending the time to docket, be docketed within 90 days after the date of the judgment or order appealed from.

[2] The record does show that orders were entered extending the time for serving the case on appeal. However, an order extending the time within which to serve the case on appeal does not have the effect of extending the time to docket the appeal. State v. Peek, 22 N.C. App. 350, 206 S.E. 2d 386 (1974) ; State v. Scott, 16 N.C. App. 424, 192 S.E. 2d 54 (1972), cert. denied, 282 N.C. 429, 192 S.E. 2d 839 (1972) ; State v. Farrell, 3 N.C. App. 196, 164 S.E. 2d 388 (1968). In accordance with the practice of this Court, defendants’ appeal is dismissed for failure to docket within the time allowed by the Rules. State v. Hunt, 14 N.C. App. 626, 188 S.E. 2d 546 (1972).

Nevertheless, we have reviewed the record before us with respect to the assignments of error brought forward for review, and we find no prejudicial error.

Appeal dismissed.

Chief Judge Brock and Judge Hedrick concur.