v.
Mangum
No. COA18-850
Filed: 3 March 2020
Johnston County, Nos. 18 CRS 412, 50682
STATE OF NORTH CAROLINA
v.
BILLY RAY MANGUM, JR., Defendant.
Appeal by Defendant from judgment entered 4 April 2018 by Judge Thomas H.
Lock in Superior Court, Johnston County. Heard in the Court of Appeals 23 April
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N. Bolton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant.
McGEE, Chief Judge.
I. Procedural and Factual Background
Billy Ray Mangum, Jr. (“Defendant”) was indicted on 5 March 2018 for possession of a stolen motor vehicle and attaining habitual felon status. Defendant pleaded guilty to the charges on 4 April 2018, and the trial court sentenced Defendant
to twenty-four to forty-one months’ imprisonment. Following its oral rendering of Defendant’s sentence, the trial court stated that “[c]ourt costs and attorney’s fees are taxed against [Defendant] as a civil judgment.” The trial court entered judgment
STATE V. MANGUM
Opinion of the Court
ordering “all costs and attorney fees to be docketed as a civil judgment.” The amount of costs and attorney’s fees were not indicated in court or in the judgment. Defendant filed written notice of appeal on 10 April 2018. Defendant’s sole proposed issue on appeal is: “Did the trial court err by failing to give [] Defendant the opportunity to be heard on attorney’s fees?” Defendant filed his appellate brief on 24 September 2018 in which, citing N.C.G.S. § 7A-27(b)(1) (2019) and State v. Pell, 211 N.C. App. 376, 377, 712 S.E.2d 189, 190 (2011), he stated that he had a right of appeal from the part of the 4 April 2018 judgment that ordered him to pay attorney’s fees because that part of the judgment was a civil judgment and he had timely entered written notice of appeal. Defendant simultaneously filed a petition for writ of certiorari (“PWC”) “out of an abundance of caution,” “in the event this Court deem[ed] his notice of appeal insufficient.” The State responded to Defendant’s PWC on 28 September 2018, arguing the PWC should be dismissed because it did not contain a “certified cop[y] of the judgment, order, or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition[,]” see N.C. R. App. P. 21(c) and, quoting Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 (1990), contending “‘this Court is without authority to entertain an appeal where there has been no entry of judgment.’” The State filed a motion to dismiss Defendant’s appeal on 28 September 2018, quoting State v. Jacobs, 361 N.C. 565, 566, 648 S.E.2d 841,
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Opinion of the Court
842 (2007), and arguing this Court lacked jurisdiction to consider Defendant’s appeal because the record contained no “civil judgment . . . ordering payment of attorney fees,” and the record must contain the order or judgment from which Defendant appeals in order to confer jurisdiction on this Court for review. The State further argued that Defendant “failed to comply with the mandatory requirements of Rule 3.” The State filed its brief on 2 October 2018, in which it also argued that this Court lacked jurisdiction to consider Defendant’s appeal. Defendant filed his response to the State’s motion to dismiss and filed a motion to amend the record on appeal, both on 10 October 2018. In his response, Defendant noted that the civil judgment ordering Defendant to pay $390.00 in attorney’s fees was not entered until 3 October 2018, but his 10 April 2018 notice of appeal was sufficient to preserve appellate review of the 3 October 2018 order because judgment was rendered on 4 April 2018, and “rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served.” Abels v. Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997) (emphasis in original) (citations omitted). In his motion to amend the record, Defendant requested this Court allow amendment of the record to include the 3 October 2018 order, entered under the same file number as the 4 April 2018 judgment—18-CRS-50682. The State responded to Defendant’s motion to amend the
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record on 28 October 2018, arguing that the notice of appeal in this matter was only from “the judgment entered in this cause on April 4, 2018[,]” not from the “rendering” of the civil judgment concerning attorney’s fees in open court. II. Jurisdiction While we agree with the State that Defendant did not follow the correct procedure for appealing the entry of the 3 October 2018 civil judgment ordering him to pay attorney’s fees, Defendant’s procedural missteps have not deprived this Court of jurisdiction to consider his appeal, either upon direct appeal or by granting certiorari. As with a judgment requiring a defendant to register as a sex offender, even though Defendant in this case was convicted of a crime, the order at issue is civil in nature, accomplished through entry of a civil judgment. Jacobs, 361 N.C. at 566, 648 S.E.2d at 842; see also Pell, 211 N.C. App. at 377, 712 S.E.2d at 190. “Therefore, an appeal from a sentence requiring a defendant to [pay attorney’s fees as a civil judgment] is controlled by civil procedure,” id. (citations omitted), and by Rule 3 of our Rules of Appellate Procedure. Jacobs, 361 N.C. at 566, 648 S.E.2d at 842. As in this case, the underlying criminal judgment from which the defendant in Pell appealed was based upon a guilty plea. Pell, 211 N.C. App. at 376, 712 S.E.2d at 190. In this case, the State argues that N.C.G.S. § 15A-1444 (2019), involving appeals from a guilty plea, removes appellate jurisdiction to consider Defendant’s arguments. However, in Pell,
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Opinion of the Court
[the d]efendant specifically appeal[ed] from the portion of his sentence requiring him to register as a sex offender. While a defendant is entitled to appeal from a guilty plea in limited circumstances, see N.C. Gen. Stat. § 15A- 1444(a2) (2009), Defendant’s appeal does not arise from the underlying convictions, therefore these limitations are inapplicable to the current action. Accordingly, Defendant’s appeal is properly before this Court for appellate review. Id. at 377, 712 S.E.2d at 190 (emphasis added). The defendant’s notice of appeal in Pell did not specifically mention mandatory registration as a sex offender, as the notice of appeal in this case does not specifically mention attorney’s fees. As with imposition of SBM in Pell, Defendant’s appeal in this case “does not arise from the underlying convictions” and N.C.G.S. § 15A-1444(a2) does not deprive this Court of jurisdiction. Id. at 377, 712 S.E.2d at 190. A. Rule 3 Rule 3(a) requires: “Any party entitled by law to appeal from a judgment or order of a superior . . . court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court . . . within the time prescribed by subsection (c) of this rule.” N.C. R. App. P. 3(a). The dissenting opinion argues that this Court lacks jurisdiction because “Rule 3(a) and binding Supreme Court precedents . . . prohibit this Court from granting Defendant’s motion to amend the record of a purported appeal that does not exist, and consequently, over which this Court unquestionably does not possess and cannot assert jurisdiction[.]”
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Opinion of the Court
Concerning the time for filing notice of appeal in a civil matter, this Court held in Abels: “Notwithstanding defendant’s protestations that plaintiff’s appeal was premature, . . . plaintiff timely appealed in that her notice was filed and served subsequent to the trial court’s rendering of its order, albeit prior to entry of said order.” Abels, 126 N.C. App. at 804, 486 S.E.2d at 738. This is because “rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served [in civil matters]. N.C. R. App. P. 3(c).” Id. (citations omitted); see also State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 571, 574–75 (2012) (citation omitted) (in criminal cases “written notice may be filed at any time between the date of the rendition of the judgment or order and the fourteenth day after entry of the judgment or order”). Therefore, Defendant’s 10 April 2018 written notice of appeal from the rendering of the civil judgment for attorney’s fees on 4 April 2018 was sufficient to preserve Defendant’s right to appeal the civil judgment ordering attorney’s fees once that judgment was entered on 3 October 2018. Defendant’s notice of appeal was timely filed. However, Defendant’s appeal was docketed in this Court prior to entry of the 3 October 2018 judgment. B. Sufficiency of Record Defendant’s mistake was not in the timing of the filing of his notice of appeal, Abels, 126 N.C. App. at 804, 486 S.E.2d at 738, but in the timing of the filing of the
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record. The State did not object or otherwise respond to Defendant’s proposed record on appeal within thirty days of service, so the record was settled pursuant to N.C. R. App. P. 11(b), and the appeal was docketed pursuant to N.C. R. App. P. 12(b) when the record was filed with this Court on 22 August 2018. However, since the judgment from which appeal was taken, being the order imposing attorney’s fees, had not yet been entered, the record was not in compliance with Rule 9(a)(1)(h.) when it was docketed. “To make [the trial court’s] purpose a judgment, it must be entered of record, and until this shall be done, there is nothing to appeal from.” Logan v. Harris, 90 N.C. 7, 7 (1884). Defendant should not have filed the record and proceeded with this appeal until after entry of the 3 October 2018 order, and that order needed to be included in the record on appeal in order to confer regular appellate jurisdiction on this Court. Jacobs, 361 N.C. at 566, 648 S.E.2d at 842 (“[B]ecause there is no civil judgment in the record ordering defendant to pay attorney fees, the Court of Appeals had no subject matter jurisdiction on this issue. See N.C. R. App. P. 3(a); id. 9(a)(1)(h).”). The dissenting opinion, citing Rule 3(a), contends that this Court cannot grant “Defendant’s motion to amend the record of a purported appeal . . . over which this Court unquestionably does not possess and cannot assert jurisdiction[.]” However, Defendant filed a motion pursuant to N.C. R. App. P. 9(b)(5) on 10 October 2018, requesting amendment of the record to include the 3 October 2018 civil judgment
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Opinion of the Court
ordering Defendant to pay attorney’s fees. Motions pursuant to Rule 9(b)(5) are routinely granted in order to amend the record for the purpose of correcting jurisdictional defects caused by violations of the appellate rules. Rule 9(b)(5) states in relevant part: Motions Pertaining to Additions to the Record. On motion of any party or on its own initiative, the appellate court may order additional portions of a trial court record or transcript sent up and added to the record on appeal. On motion of any party, the appellate court may order any portion of the record on appeal or transcript amended to correct error shown as to form or content. N.C. R. App. P. 9(b)(5)(b.). Our Supreme Court has made clear this Court’s authority to amend the record to obtain jurisdiction over an appeal: In Felmet, the defendant moved for leave to amend the record to include “the judgment of the district court which reflected defendant’s appeal therefrom to the superior court” to show how the superior court obtained subject matter jurisdiction over his case. Felmet, 302 N.C. at 174, 273 S.E.2d at 710. The Court of Appeals denied the motion. We concluded that the denial was a decision within the discretion of the Court of Appeals and that we could find no abuse of that discretion. Nevertheless, we held the record should be amended to reflect subject matter jurisdiction so that we could reach the substantive issue of the appeal. In so holding, we stated, “[this] is the better reasoned approach and avoids undue emphasis on procedural niceties.” While we find no abuse of discretion on the part of the Court of Appeals in denying the State’s motion to amend, we elect as we did in Felmet to allow the State leave to amend.
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Opinion of the Court
When the record is amended to add the presentment, it is clear the superior court had jurisdiction over these misdemeanors under N.C.G.S. § 7A-272(2) [and, therefore, appellate jurisdiction also existed]. State v. Petersilie, 334 N.C. 169, 177–78, 432 S.E.2d 832, 837 (1993) (citations omitted); see also State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981) (our Supreme Court “decided to allow the amendment [pursuant to Rule 9(b)(5)(b.)] to reflect subject matter jurisdiction and then pass upon the substantive issue of the appeal”); Williams v. United Cmty. Bank, 218 N.C. App. 361, 367, 724 S.E.2d 543, 548 (2012) (“The original record on appeal contained no notice of appeal[.] However, . . . the . . . [p]laintiffs moved to amend the record on appeal pursuant to Rules 9(b)(5) and 37 of the North Carolina Rules of Appellate Procedure. We allow the . . . [p]laintiffs’ motion to amend the record on appeal to include the notice of appeal” and address the merits.). As noted by our Supreme Court, whether to grant or deny a motion to amend the record is “a decision within the discretion of the Court of Appeals” that constitutes a legitimate application of our appellate rules absent “an abuse of discretion.” Petersilie, 334 N.C. at 177, 432 S.E.2d at 837 (citation omitted). Contrary to the dissenting opinion’s assertion, this Court has the authority and the jurisdiction to amend a record that does not confer jurisdiction for appellate review into one that
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Opinion of the Court
demonstrates our appellate jurisdiction.[1] Id. In any event, no grant of certiorari is required for this Court to allow Defendant’s motion to amend the record, Rule 9(b)(5)(b.) provides that authority. Petersilie, 334 N.C. at 177–78, 432 S.E.2d at 837 (and other opinions cited above). We decide, in our discretion, to grant Defendant’s motion to amend the record to include the 3 October 2018 judgment. Felmet, 302 N.C. at 176, 273 S.E.2d at 711. Although Defendant’s appeal was docketed on 22 August 2018 when the record was filed, it only became “properly perfected” through granting Defendant’s motion to amend the record to include the 3 October 2018 judgment. Swilling v. Swilling, 329 N.C. 219, 225, 404 S.E.2d 837, 841 (1991) (citation omitted). Therefore, because the 3 October 2018 judgment is now properly part of the record before us, the jurisdictional defects cited in Jacobs, 361 N.C. at 566, 648 S.E.2d at 842, are no longer an issue in this matter and we address the merits of Defendant’s appeal. C. Certiorari 1. Rule 21(a)(1) Assuming, arguendo, the rule set forth in Abels, 126 N.C. App. at 804–05, 486 S.E.2d at 738, does not apply, and our amendment of the record to include the 3 October 2018 judgment did not cure the jurisdictional deficiency, Defendant also
STATE V. MANGUM
TYSON, J., dissenting
Defendant requested and was appointed defense counsel. He knowingly and voluntarily pled guilty to all charges, including attaining the status of a habitual felon. Defendant was also informed by the trial court and agreed that his appointed counsel is not a free counsel, and in the event he pled or was found guilty, he was responsible for reimbursing his state-paid counsel’s fees. See N.C. Gen. Stat. § 7A- 455 (2019). Defendant was present in court and was ordered to pay his attorney’s fees at sentencing. He was free to question or challenge the court’s order, but failed to do so. Defendant did not inform the State or trial court that his guilty pleas were conditioned upon appeal to preserve any issue to seek appellate review. See N.C. Gen. Stat. § 15A-1444 (2019). The trial court determined the “extraordinary sum” of $390.00 in attorney’s fees was owed and to be reimbursed to the State. The trial court entered a civil judgment to reimburse the taxpayers on 3 October 2018. State v. Baker, __ N.C. App. __, __, 817 S.E.2d 907, 911 (2018) (trial courts are permitted “to enter a civil judgment against an indig[e]nt defendant following his conviction in the amount of the fees incurred by the defendant’s appointed trial counsel” (citation omitted)). The majority’s opinion recognizes this sum is a valid debt owed by Defendant to be entered again on remand. Defendant cannot demonstrate any merit in his argument nor any prejudice to pay what he owes.
STATE V. MANGUM
TYSON, J., dissenting
We all agree with the State’s arguments that Defendant has wholly failed to comply with the mandatory appellate rules and criminal and civil procedures for appealing from the entry of the 3 October 2018 civil judgment, which ordered him to reimburse his agreed-upon and justly-due attorney’s fees. Defendant’s failure to comply with the multiple Rules deprives this Court of jurisdiction to consider his assertions upon direct appeal. Abels, 126 N.C. App. at 803, 486 S.E.2d at 737. We all also agree that multiple prior precedents hold that violations of certain appellate rules, including Rule 3, divest this Court of jurisdiction to consider an appellant’s direct appeal and mandates dismissal: “Failure to follow the rules will subject an appeal to dismissal.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008) (citations and alterations omitted). Defendant’s appeal is properly dismissed. II. Amendment Does Not Cure Jurisdictional Defaults We also all agree Defendant was required by the Rules to file the record and proceed with this appeal only after entry of the 3 October 2018 order, and that entered order was required to be included in the record on appeal in order to confer regular appellate jurisdiction on this Court. See N.C. R. App. P. 3(d); see also Jacobs, 361 N.C. at 566, 648 S.E.2d at 842 (“because there is no civil judgment in the record ordering defendant to pay attorney fees, the Court of Appeals had no subject matter jurisdiction on this issue” (emphasis supplied) (citations omitted)).
STATE V. MANGUM
TYSON, J., dissenting
“The appellant’s compliance with the jurisdictional rules governing the taking of an appeal is the linchpin that connects the appellate division with the trial division and confers upon the appellate court the authority to act in a particular case.” Dogwood, 362 N.C. at 197, 657 S.E.2d at 364-65 (citations omitted). “It is fundamental that a court cannot create jurisdiction where none exists.” Ponder v. Ponder, 247 N.C. App. 301, 306, 786 S.E.2d 44, 48 (2016) (citations and internal quotation marks omitted). Appellate Rule 3(a) requires: “Any party entitled by law to appeal from a judgment or order of a superior . . . court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court . . . within the time prescribed by subsection (c) of this rule.” N.C. R. App. P. 3(a). The State correctly argues: (1) Defendant failed to comply with the mandatory requirements of Rule 3; (2) this Court lacks jurisdiction to consider Defendant’s purported notice of appeal; and, (3) the appeal must be dismissed. Id.; see also Viar, 359 N.C. at 401, 610 S.E.2d at 361. “Stated differently, a jurisdictional default brings a purported appeal to an end before it ever begins.” Dogwood, 362 N.C. at 198, 657 S.E.2d at 365. “It is well established in this jurisdiction that it is the duty of the appellant to see that the record on appeal is properly made up and transmitted.” State v. Dellinger, 308 N.C. 288, 294, 302 S.E.2d 194, 197 (1983) (citation omitted). The
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TYSON, J., dissenting
record on appeal was proposed by Defendant and became the settled record on this appeal as a matter of law on 20 August 2018, after the State decided not to challenge or to serve notice of approval or objections, amendments, or an alternative proposed record. See N.C. R. App. P. 11(b). Defendant’s purported appeal was taken and docketed in this Court prior to entry of the 3 October 2018 civil judgment from which he purports to appeal. The record was not compliant with Rules 9(a)(1)(h) and 11(b) and long-standing precedents when it was docketed without and prior to the civil judgment being entered. Over 136 years ago, our Supreme Court held: “To make [the trial court’s] purpose a judgment, it must be entered of record, and until this shall be done, there is nothing to appeal from.” Logan v. Harris, 90 N.C. 7, 7 (1884). Compliance with the requirements for entry of notice of appeal is jurisdictional. Dogwood, 362 N.C. at 197-98, 657 S.E.2d at 365. Appellate Rule 2 cannot be used to grant appellate review, where no jurisdiction exists. See Ponder, 247 N.C. App. at 306, 786 S.E.2d at 48. In its response to Defendant’s motion seeking to amend the record to add the missing judgment, the State also correctly argues that binding precedents show Defendant’s notice of appeal was only from “the judgment entered in this cause on April 4, 2018,” and not from the “rendering” of the civil judgment concerning attorney’s fees in open court. As a result, the State also correctly argues that N.C. Gen. Stat. § 15A-1444 limits appeals from guilty pleas and removes this Court’s
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TYSON, J., dissenting
appellate review to consider Defendant’s arguments here. See N.C. Gen. Stat. § 15A- 1444; State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Rule 3(a) and binding Supreme Court precedents also prohibit this Court from granting Defendant’s motion to amend the record of a purported appeal that does not exist, and consequently, over which this Court unquestionably does not possess and cannot assert jurisdiction, i.e., the power to act. N.C. R. App. P. 3(a) (2019); Logan, 90 N.C. at 7. None of these binding precedents or Rules, facts, or arguments are refuted by Defendant or explained away in the majority’s opinion, which expressly recognizes the Rules and precedents. Defendant’s purported direct appeal is properly dismissed and is not saved through Defendant’s motion for a purported amendment. III. Petition for Writ of Certiorari It is uncontested that Defendant filed a defective notice of appeal. Subsequently, Defendant filed a petition for a writ of certiorari (“PWC”). “Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted). To warrant consideration, our Supreme Court held Defendant’s “petition for the writ must show merit or that error was probably committed below.” Id. (citation omitted). Without threshold allegations of merit and prejudice, review by
STATE V. MANGUM
TYSON, J., dissenting
certiorari is not available to either by statute or by precedents to Defendant. Id.; N.C. Gen. Stat. §§ 15A-1442, 15A-1444(g). To warrant issuance of the writ, Defendant’s petition must show the purported issue on appeal has potential merit and, even if meritorious, that he suffered prejudice. Id. While his petition is not required to show he is certain to prevail on the merits, it alleges no potential of merit, asserts no prejudice or probability of a different result on remand. Defendant’s meritless petition is properly denied. See id. The majority’s opinion does not state any basis to allow the petition or invoke Rule 2, but nonetheless grants Defendant’s petition, purports to amend the record, and address the merits. As such, I also address Defendant’s lack of demonstrated merit or prejudice in the underlying issue. Defendant recognizes “his notice of appeal [was] insufficient” to invoke jurisdiction. As a result, he filed a PWC “out of an abundance of caution.” In response to Defendant’s PWC, the State again correctly states and argues our rules and precedents require the purported PWC be dismissed, as required by the Appellate Rules. N.C. R. App. P. 21(c) (“petition shall contain a . . . certified cop[y] of the judgment, order, or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition.”). The State also correctly asserts, “this Court is without authority to entertain an appeal where there has been
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TYSON, J., dissenting
no entry of judgment.” Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 (1990) (citation omitted). Unlike here, all cases cited in the majority’s opinion allowing an amendment added an existing judgment entered prior to the appeal being taken to the record on appeal, but was mistakenly omitted therefrom. State v. Petersilie, 334 N.C. 169, 177- 78, 432 S.E.2d 832, 837 (1993); State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981) (our Supreme Court “decided to allow the amendment [pursuant to Rule 9(b)(5)(b)] to reflect subject matter jurisdiction and then pass upon the substantive issue of the appeal” (emphasis supplied)); Williams v. United Cmty. Bank, 218 N.C. App. 361, 367, 724 S.E.2d 543, 548 (2012). None of these cases support allowing an amendment to include a judgment, which had not yet been entered when the appeal was taken and docketed, in order to retroactively supply jurisdiction, which did not exist when Defendant’s appeal was taken or docketed. We also all agree that even if a civil judgment has been entered, because Defendant failed to include it in the record, this Court lacks jurisdiction to review it, and no relief from that order could be granted. By extension, if a purported appeal is taken before and docketed without any order or judgment having been entered, the appeal must be dismissed. There is no final entered order nor anything else properly before this Court to review. Logan, 90 N.C. at 8; State v. McKoy, No. COA18-599, __
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TYSON, J., dissenting
N.C. App. __, __ S.E.2d __ (2020) (unpublished); Searles, 100 N.C. App. at 725, 398 S.E.2d at 56. IV. Conclusion The record on appeal contains no entered order that Defendant properly appealed from to invoke appellate jurisdiction for this Court to review. Defendant’s purported notice of appeal is fatally defective and must be dismissed. See N.C. R. App. P. 3(a). Amendment does not provide jurisdiction to an appeal taken and docketed months prior to the entry of the civil judgment on 3 October 2018 and also does not include the judgment purportedly appealed from. Defendant’s purported notice of appeal only asserts review of Defendant’s criminal judgment entered upon his guilty pleas, which is barred by statute. N.C. Gen. Stat. § 15A-1444(a1) (2019). We all agree Defendant does not otherwise challenge the sentence or judgment entered on 4 April 2018 pursuant to his guilty pleas and those judgments are undisturbed. Defendant has failed to demonstrate any prejudice. The majority’s decision remands for the trial court to again enter the same judgment it has already entered. The purported appeal does not invoke this Court’s appellate jurisdiction and the Defendant’s PWC is wholly without merit. I also concur with Judge Berger’s separate concurring in the result only opinion, wherein he concludes these procedural appeals cost countless hours of labor
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TYSON, J., dissenting
and tens-of-thousands of dollars, and “elevates form over substance. . . . [A]nyone interested in efficiencies and saving taxpayer dollars should hope the Supreme Court of North Carolina takes advantage of this opportunity to return us to the plain language of N.C. Gen. Stat. § 15A-1444(a2).” Scarce judicial resources and taxpayer funds are wasted with these purported “appeals,” which show no jurisdiction, assert no merits, result in no prejudice, and where the trial court will enter the same civil judgment of $390.00 on remand that Defendant acknowledged he owes. There is nothing before this Court to properly review or remand. I vote to dismiss Defendant’s purported appeal and motion to amend, and to deny his PWC. I respectfully dissent.
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