Criminal Practice – Sufficiency of Written/Oral Notice of Appeal to Court of Appeals – Designation of Findings of Fact to Superior Court -De Novo Review of District Court Findings

State v. Miller (Lawyers Weekly No. 011-169-16, 16 pp.) (Per Curiam) Appealed from Mecklenburg County Superior Court (Linwood Foust, J.) N.C. App. Unpub.

Holding: The superior court denied the state’s request for a hearing de novo under G.S. § 20-38.7(a) seeking review of the district court’s “preliminary determination” granting defendant’s motion to suppress because the state’s notice of appeal had not adequately articulated the district court’s findings of fact to which it objected. The state appealed the ruling to this court via both written notice of appeal and oral notice in superior court. The written notice referenced a date other than that of the order to which the state assigned error and failed to reference the correct jurisdictional statute. Based on the oral notice of appeal, however, the state’s appeal is properly before this court. Further, we find that the notice of appeal to the superior court contained sufficient notice of the findings of fact upon which the appeal was based.

We remand the matter to superior court to review the district court’s “preliminary determination” of the defendant’s motion to suppress. The trial court should address the state’s challenges to the district court’s findings of fact at a hearing pursuant to G.S.§ 20-38.7(a) and G.S. § 14A-1432.

Background

The state’s written notice of appeal to this court, which stated that it was filed “pursuant to N.C.G.S. § 15A-1445(a)(1),” referenced the superior court order dated June 2, 2014, “in which the Court granted the defendant’s motion to suppress.” Defendant argues that this court is without jurisdiction to address the state’s appeal because the notice of appeal references the incorrect order.  The 2 June 2014 order was entered at the state’s request to affirm the district court’s final order granting defendant’s motion to suppress. The order to which the state assigns error was issued by the superior court on Nov. 15, 2013, dismissing the state’s appeal and denying the state’s request for a de novo hearing. This order is not mentioned in the state’s notice of appeal to this court.

In addition, defendant contends that G.S. § 15A-1445(a)(1), which is cited in the notice of appeal, is applicable to final orders issued by a superior court acting in its original jurisdiction and is not applicable to the appeal sought by the state.

Discussion

While we agree that G.S. § 15A-1432(e), and not § 15A-1445(a)(1), is the correct statute to confer jurisdiction upon this court in the present action, defendant’s motion fails to address the fact that an oral notice of appeal was also entered by the state. N.C.R. App. P. 4 permits a party to take appeal by “giving oral notice of appeal at trial.” State v. Oates, 366 N.C. 264, 732 S.E.2d 571 (2012), permits oral notice of appeal, but only if made at trial or at the pretrial hearing. Here, the prosecutor orally entered notice of appeal to the Court immediately after the superior court orally affirmed the final order of the district court pursuant to the State’s request. Following the state’s oral notice of appeal, the written notice was superfluous. Therefore, the state’s appeal is properly before this court.

The state argues that the superior court erred by denying a hearing de novo to review the district court’s granting of defendant’s motion to suppress. The plain language of G.S. § 20-38.7(a) requires the superior court to determine the matter de novo only “if there is a dispute about the findings of fact.” In this case, the state’s notice of appeal to the superior court stated that the district court “made the required written findings and signed her Findings of Fact and Conclusions of Law,” and that “the State disputes the District Court Judge’s Findings of Fact and respectfully requests a hearing de novo in Superior Court.” The superior court based its dismissal of the state’s appeal on the lack of articulation of specific findings of fact or conclusions of law in the notice of appeal.

G.S. § 20-38.7(a) is silent as to the manner in which the state is required to give notice of appeal from the district court’s “preliminary determination” that it intends to grant a defendant’s pretrial motion to suppress or dismiss. In State v. Palmer, 197 N.C. App. 201, 676 S.E.2d 559, disc. review denied, 363 N.C. 810, 692 S.E.2d 394 (2010), this court upheld the validity of a notice of appeal which recited, almost verbatim, all of the district court’s findings of fact, without noting the specific findings of fact in dispute. Here, the state’s notice of appeal reads the “State disputes the District Court Judge’s Findings of Fact.”

We are bound by Palmer and hold that the applicable statutory language in G.S. § 20-38.7(a) and G.S. § 15A-1432(b) does not require the state to set forth the specific findings of fact to which it objects in its notice of appeal to superior court under these circumstances.

We further note that on May 30, 2014, the Senior Resident Superior Court Judge of the 26^th Judicial District entered an administrative order stating that “whenever the state appeals from a district court preliminary determination granting a motion to suppress or dismiss as permitted by NCGS 20-38.7, the State shall specify with particularity in its written notice of appeal those findings of fact made by the district court, or portions thereof, which the State disputes in good faith; a broadside exception to the district court’s findings of fact is not permitted.”

The order further sets out procedures under which counsel for the defendant and the assistant district attorney prosecuting the appeal are to confer in order to arrive at stipulations of facts not in dispute. These written stipulations, signed by the attorneys, are to be filed with the Clerk of Superior Court. The order applies to all appeals made by the state under G.S. § 20-38.7 on and after June 9, 2014.

We note that the Senior Resident Superior Court Judge has the authority to enter such orders governing practices and procedures within that judge’s Judicial District. That order is not before us on this appeal. The state’s notice of appeal in the present case was entered prior to the filing of this administrative order, and it is not applicable to this case on remand.

Remanded.