State v. Garner, 67 N.C. App. 761 (1984)

April 17, 1984 · North Carolina Court of Appeals · No. 8311SC998
67 N.C. App. 761
STATE OF NORTH CAROLINA v. HENRY MATTHEWS GARNER, JR.

STATE OF NORTH CAROLINA v. HENRY MATTHEWS GARNER, JR.

No. 8311SC998

(Filed 17 April 1984)

Criminal Law § 181.1— motion for appropriate relief — time for filing expired

Where defendant entered a plea of “no contest” to armed robbery on 24 October 1977, and when, pursuant to G.S. 15A-1415, defendant made a motion for appropriate relief on 17 November 1982, his right to appeal the armed robbery conviction had expired, and no appeal was pending on 19 May 1983 when the trial court denied defendant’s motion. Pursuant to G.S. 15A-1422(c) defendant’s appeal from the denial of his motion for appropriate relief must fail since the time for appeal from a conviction had expired and no appeal was pending at the time of the ruling.

Appeal by defendant from Brewer, Judge. Judgment entered 19 May 1983 in Superior Court, Lee County. Heard in the Court of Appeals 9 April 1984.

Defendant attempts to appeal from a trial court order denying his motion for appropriate relief.

Attorney General Edmisten, by Nonnie F. Midgette, Assistant Attorney General, for the State.

F. Jefferson Ward, Jr., for defendant appellant.

VAUGHN, Chief Judge.

The record shows that on 24 October 1977, defendant entered a plea of “no contest” to armed robbery and was thereby sentenced to forty years in state prison. When, pursuant to G.S. 15A-1415, defendant made a motion for appropriate relief on 17 November 1982, his right to appeal the armed robbery conviction *762had expired. The record discloses no appeal pending on 19 May 1983, when the trial court denied defendant’s motion.

The provisions of G.S. 15A-1422(c) allow appeals from a denial of a motion for appropriate relief made under G.S. 15A-1415 only if: (1) the time for appeal from a conviction has not expired or (2) an appeal is pending at the time of the ruling. The appeal, therefore, must be and is hereby dismissed. We have treated the purported appeal as a petition for the issuance of a writ of certiorari. After an examination of the record and briefs, in our discretion, we deny the issuance of the writ.

Appeal dismissed.

Petition for writ of certiorari denied.

Judges Johnson and Eagles concur.