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North Carolina v. Thompson
Filed: March 16, 1982.
STATE OF NORTH CAROLINA
Appeal by defendant from Owens, Judge. Judgment entered 20 July 1981 in Superior Court, Rutherford County. Heard in the Court of Appeals 2 March 1981.
Martin (Robert M.), Judge. Judges Martin (Harry C.) and Whichard concur.
The defendant's sole argument on appeal is that the trial court erred in denying his motion for the return of the $4,360 seized by Officer Wilkins on 7 May 1981. We must disagree.
In this case the money was seized from defendant pursuant to a valid search warrant. N.C. Gen. Stat. § 15-11.1(a) provides that a law enforcement officer shall safely keep property seized pursuant to lawful authority under the direction of the court for "as long as necessary to assure that the property will be produced at and may be used as evidence in any trial." (Emphasis added.) On 28 July 1981 an indictment was returned against defendant and the trials for defendant and Ted Harris are set for 10 March 1982 in Rutherford County. Clearly the trial court had the authority pursuant to N.C. Gen. Stat. § 15-11.1(a) to retain the money until the matter came on for trial.
Moreover, the defendant's appeal is interlocutory and must be dismissed. In a criminal case there is no provision in N.C. Gen. Stat. § 7A-27 for an appeal to the Court of Appeals as a matter of right from an interlocutory order entered therein. State v. Black, 7 N.C. App. 324, 172 S.E.2d 217 (1970). The order entered by Judge Owens is not a final judgment which disposes of the case between the State and the defendant, leaving nothing to be determined between them in the trial court. This order leaves the case for further action by the trial court in order to settle and determine the whole controversy between the State and the defendant. State v. Childs, 265 N.C. 575, 144 S.E.2d 653 (1965). In Privette v. Privette, 230 N.C. 52, 53, 51 S.E.2d 925, 926 (1949) the court said: "As a general rule an appeal will not lie until there is a final determination of the whole case. [Citations omitted.] It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant." Judge Owens' interlocutory order does not put an end to this case. It does not destroy, impair, or seriously imperil a substantial right of the defendant; in fact, the action of the trial judge is explicitly authorized by N.C. Gen. Stat. § 15-11.1(a). Consequently this appeal is fragmentary and premature and falls under the bar of the general rule forbidding fragmentary and premature appeals from an interlocutory order. State v. Childs, supra.
For the foregoing reasons this appeal must be dismissed.
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