State v. McCall, 27 N.C. App. 13 (1975)

Aug. 20, 1975 · North Carolina Court of Appeals · No. 7525SC319

27 N.C. App. 13

STATE OF NORTH CAROLINA v. WILLIAM RAY McCALL

No. 7525SC319

(Filed 20 August 1975)

Criminal Law § 155.5— extension of time for docketing appeal — authority of court — failure to docket in apt time

, The trial tribunal had no power to extend the time for docketing the record on appeal for any period exceeding 150 days from the date of the judgment appealed from, and an appeal docketed after the 150-day period, though docketed within a purported extension by the trial tribunal, is subject to dismissal.

Appeal by defendant from Thornburg, Judge. Judgment entered 1 November 1974 in Superior Court, Catawba County. Heard in the Court of Appeals 17 June 1975.

At a session of Superior Court held in Catawba County in October 1973, defendant was tried before Judge Sammie Chess, Jr. and a jury on indictments in ten criminal cases, each indictment containing two counts charging defendant with feloniously forging and feloniously uttering certain checks. The jury found defendant guilty of both charges in all ten cases. In Case No. 18663 Judge Chess entered judgment on 25 October 1973 sentencing defendant to prison for not less than five nor more than seven years on each count in the indictment, the two sentences to run concurrently. No appeal was taken from the judgment entered in Case No. 18663.

In each of the remaining nine cases, Judge Chess directed that prayer for judgment be continued from term to term for two years or until judgment is imposed at a session of court prior to expiration of two years. Thereafter the State prayed judgment in the nine cases, and on 1 November 1974 defendant was brought before Judge Lacy H. Thornburg, presiding over a session of Superior Court in Catawba County. Judge Thorn-burg consolidated all counts in the nine cases for purposes of judgment, and entered judgmeht dated 1 November 1974 sentencing defendant to prison for a term of ten years, with directions that defendant be given credit on this sentence for the time he had spent in prison either awaiting trial or serving the sentence theretofore imposed in Case No. 18663.

From the judgment imposed by Judge Thornburg on 1 November 1974, defendant appealed.

Attorney General Edmisten by Assistant Attorney General Roy A. Giles, Jr. for the State.

Sigmon, Clark & Mackie by Jeffrey T. Mackie for defendant appellant.

PARKER, Judge.

The judgment appealed from was dated 1 November 1974. The record on this appeal was not docketed in this Court until 28 April 1975, which was more than 150 days after the date of the judgment appealed from. There appears in the record an order of the trial tribunal purporting to extend the time for docketing for a total of 150 days “from December 2, 1974.” Under Rule 5 of the Rules of Practice in the Court of Appeals, the trial tribunal, for good cause, may extend the time for docketing the record on appeal for a period not exceeding 60 days after the expiration of the original 90-day period allowed by the Rules, thus allowing a total time for docketing not exceeding 150 days from the date of the judgment appealed from. However, the trial tribunal had no power to extend the time for docketing for any period exceeding 150 days from the date of the judgment appealed from. For failure to docket the record on appeal within the time allowed by the Rules of this Court, this appeal is subject to dismissal. State v. Adams, 16 N.C. App. 640, 192 S.E. 2d 648 (1972).

Nevertheless, we have reviewed the record and find no prejudicial error.

Appeal dismissed.

Chief Judge Brock and Judge Arnold concur.