State v. Bartlett, 64 N.C. App. 388 (1983)

Oct. 4, 1983 · North Carolina Court of Appeals · No. 8225SC1274

64 N.C. App. 388

STATE OF NORTH CAROLINA v. JACKIE ALLEN BARTLETT

No. 8225SC1274

(Filed 4 October 1983)

Criminal Law § 154.2— failure to file record on appeal within 150 days of giving notice — dismissal of appeal

Pursuant to App. R. 12(a) defendant’s appeal was dismissed for his failure to file the record on appeal within 150 days of giving notice of appeal.

On writ of certiorari to review judgment entered by Lane, Judge. Judgment entered 17 June 1981 in BURKE County Superior Court. Heard in the Court of Appeals 20 September 1983.

Defendant was found guilty of felonious breaking or entering and felonious larceny. The trial court sentenced him to a five year minimum and five year maximum sentence in prison on the breaking or entering verdict, and arrested judgment on the larceny verdict. Unusual circumstances deprived defendant of a fair chance to give timely notice of appeal, but this court granted a writ of certiorari to review the case.

Attorney General Rufus L. Edmisten, by Assistant Attorney General Douglas A. Johnston, for the State.

Simpson, Ay cock, Beyer & Simpson, P.A., by Richard W. Beyer, for defendant.

WELLS, Judge.

Defendant’s petition for writ of certiorari was allowed on 17 May 1982. The order allowing the petition specified that date as the time from which appeal was considered to be taken. The record in this appeal was filed in the Court of Appeals 200 days later, on 3 December 1982.

On 24 August 1982 defendant filed a motion in this Court entitled “Request for an Extension of Time.” The motion was dismissed without prejudice to file a new motion “setting forth the status of the appeal in greater detail.” Defendant filed no further motion for an extension of time.

Appellate Rule 12(a) requires the record on appeal to be filed within 150 days of giving notice of appeal, which defendant has failed to do in the present case. Defendant’s failure to perfect his appeal within the time allowed by the Rules of Appellate Procedure requires a dismissal of his appeal. Craver v. Craver, 298 N.C. 231, 258 S.E. 2d 357 (1979). We have reviewed the record and briefs and we are convinced that defendant’s appeal lacks merit and that there is no basis under Appellate Rule 2 upon which we should waive defendant’s violation of Appellate Rule 12.

Appeal dismissed.

Judges Arnold and Eagles concur.