State v. McGaha, 26 N.C. App. 528 (1975)

July 2, 1975 · North Carolina Court of Appeals · No. 7530SC233

26 N.C. App. 528

STATE OF NORTH CAROLINA v. CASS McGAHA, JR.

No. 7530SC233

(Filed 2 July 1975)

Criminal Law § 155.5 — docketing of record not timely — appeal dismissed

Appeal is dismissed where the record on appeal was filed more than ninety days after judgment in the case was entered. ■'

Appeal by defendant from Friday, Judge. Judgment entered 14 November 1974 in Superior Court, Haywood County. Heard in the Court of Appeals 27 May 1975. ’.

Defendant was charged with operating a motor vehicle,oh á public street or public highway “ [w]hile his chauffeur’s'license was revoked” and “[wjhile under the influence of intoxicating liquor; this being his second offense” of operating a motor vehicle while under the influence of intoxicating liquor. Upon his plea of not guilty, the jury returned a verdict of “guilty as to both offenses.” From judgments on the verdict, defendant appealed.

Attorney General Edmisten, by Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Alfred N. Salley, for the State.

Miller, Alley & Killian, by Leon M. Killian III, for defendant appellant.

MORRIS, Judge.

The judgment in this case was entered on 14 November 1974. The record on appeal was filed more than 90 days later, on 24 March 1975. Although the trial judge entered an order extending the time to serve the case on appeal, no order was issued extending the time for docketing the record on appeal. Under Rule 5 the record on appeal must be docketed within 90 days after the date of the judgment appealed from, unless the trial judge extends the time, not exceeding an additional 60 days to docket the record on appeal. Nor is an extension of time within which to docket the record on appeal accomplished by the obtaining of an extension of time within which to serve the case on appeal. Clark v. Williams, 22 N.C. App. 341, 206 S.E. 2d 310 (1974).

Appeal dismissed.

Chief Judge Brock and Judge Hedrick concur.