State v. Phillips, 25 N.C. App. 109 (1975)

March 5, 1975 · North Carolina Court of Appeals · No. 7426SC1063

25 N.C. App. 109

STATE OF NORTH CAROLINA v. WILLIE JAMES PHILLIPS

No. 7426SC1063

(Filed 5 March 1975)

Criminal Law § 155.5— extension of time to serve case — no extension of time to docket

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

Appeal by defendant from Falls, Judge. Judgment entered 30 July 1974 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 21 February 1975.

Defendant was charged in a bill of indictment, proper in form, with unlawful possession of heroin, a felony. He pleaded not guilty, a jury found him guilty as charged, and from judgment imposing prison sentence of five years, he appealed.

Attorney General Edmisten, by Associate Attorney Wilton E. Ragland, Jr., for the State.

Elam & Stroud, by William H. Elam, for defendant appellant.

BRITT, Judge.

The judgment from which defendant appeals was entered on 30 July 1974 but the record on appeal was not docketed in this court until 16 December 1974. Rule 5 of the Rules of Practice in the Court of Appeals of North Carolina requires that the record on appeal be docketed within 90 days after the date of the judgment appealed from, unless the trial tribunal, for good cause, extends the time for docketing for not more than 60 days.

In numerous cases we have held that an order of the trial tribunal extending the time to serve the case on appeal does not have the effect of extending the time to docket the appeal. The first of these was Smith v. Starnes, 1 N.C. App. 192, 160 S.E. 2d 547 (1968), and the principle has been restated in many others including the following: 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) ; State v. Hunt, 14 N.C. App. 626, 188 S.E. 2d 546 (1972); State v. Brigman, 8 N.C. App. 316, 174 S.E. 2d 48 (1970) ; State v. Fulk, 7 N.C. App. 68, 171 S.E. 2d 81 (1969) ; Reece v. Reece, 6 N.C. App. 606, 170 S.E. 2d 546 (1969) ; and State v. Farrell, 3 N.C. App. 196, 164 S.E. 2d 388 (1968).

For failure of defendant to comply with the rules of this court, the appeal is dismissed.

Nevertheless, we have considered the questions raised in defendant’s brief but find them to be without merit. Defendant received a fair trial and the judgment imposed is within the limits provided by statute.

Appeal dismissed.

Judges Morris and Arnold concur.