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Criminal Practice — MAR – Subject Matter Jurisdiction – State’s Appeal

State v. Stubbs (Lawyers Weekly No. 15-06-0328, 6 pp.) (Robin Hudson, J.) (Cheri Beasley & Sam Ervin IV, JJ., not participating) Appealed from Cumberland County Superior Court (Gregory Weeks, J.) On appeal from the Court of Appeals. N.C. S. Ct.

Holding: According to G.S. § 15A-1422(c), a ruling on a motion for appropriate relief is subject to review by writ of certiorari if the time for appeal has expired and no appeal is pending. Since the statute does not distinguish between an MAR when the state prevails below and an MAR under which the defendant prevails, the Court of Appeals has jurisdiction to hear an appeal by the state of an MAR when the defendant has won relief from the trial court.

We affirm the Court of Appeals’ decision, which reversed the trial court’s grant of relief and remanded for reinstatement of the original 1973 judgment against defendant.

While N.C. R. App. P. 21 might appear to limit the jurisdiction of the Court of Appeals in this situation, the appellate rules cannot take away jurisdiction given to that court by the General Assembly in accordance with the state constitution.

As for whether a second panel of the Court of Appeals can revisit a determination of subject matter jurisdiction after a previous panel has already done so, we simply note that here, both panels did have subject matter jurisdiction.

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