State v. Hester, 93 N.C. App. 594 (1989)

May 2, 1989 · North Carolina Court of Appeals · No. 8815SC1109

93 N.C. App. 594

STATE OF NORTH CAROLINA v. STEPHEN HESTER

No. 8815SC1109

(Filed 2 May 1989)

Criminal Law § 146.5— appeal from guilty plea — treated as petition for certiorari — denied

A defendant was not entitled to appeal as a matter of right from the judgment entered on his plea of guilty to the misdemeanor of hunting deer with dogs in Alamance County. The Court of Appeals treated defendant’s attempted appeal as a petition for a writ of certiorari challenging the constitutionality of the law under which he was charged, and denied the writ. N.C.G.S. § 15A-1444(e) (1988).

APPEAL by defendant from Stephens, Donald W., Judge. Judgment entered 4 August 1988 in ALAMANCE County Superior Court. Heard in the Court of Appeals 12 April 1989.

Defendant was charged with the misdemeanor of hunting deer with dogs in Alamance County in violation of Section 2, Chapter 825 of the 1979 Session Laws of the State of North Carolina. On 28 January 1987, the charge against defendant was dismissed in Alamance County District Court on the basis that the District Court of Alamance County had previously ruled that the statute under which defendant was charged was unconstitutional. The State appealed this ruling to the Superior Court which reinstated the charge.

On 28 May 1987, defendant was convicted in the District Court and appealed to the Superior Court. On 1 December 1987, the Superior Court, Brewer, Judge presiding, denied defendant’s motion to dismiss on constitutional grounds. At the 4 August 1988 session of Superior Court, defendant entered a plea of guilty, upon which judgment was entered ordering defendant to pay a fine of $50.00, plus court costs. From that judgment, defendant has appealed.

Attorney General Lacy H. Thornburg, by Associate Attorney General Melissa L. Trippe, for the State.

Vernon, Vernon, Wooten, Brown & Andrews, P.A., by Wiley P. Wooten and T. Randall Sandifer, for defendant-appellant.

WELLS, Judge.

Although the State has not raised the question, we must consider the appealability of this case. N.C. Gen. Stat. § 15A-1444(e) (1988), in pertinent part, provides:

Except as provided in subsection (al) of this section and G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.

None of the exceptions mentioned in G.S. § 15A-1444(e) apply in this case, and defendant is therefore not entitled to appeal as a matter of right from the judgment entered on his plea of guilty.

In his attempted appeal, defendant has challenged the constitutionality of the law under which he was charged. Treating defendant’s attempted appeal as a petition for writ of certiorari, we are not persuaded that defendant has raised a serious constitutional question and in our discretion we deny the writ in this case.

Certiorari denied; appeal dismissed.

Chief Judge HEDRICK and Judge EAGLES concur.