Appeal by the State from Kirby, Judge. Judgment entered 13 May 1981 in Superior Court, Cleveland County. Heard in the Court of Appeals 1 December 1981.
Wells, Judge. Judges Arnold and Martin (Harry C.) concur.
Two issues are raised in this appeal: whether this Court has jurisdiction to hear the State's appeal, and whether Judge Kirby
correctly applied the doctrine of collateral estoppel to bar the State's relitigation of the validity of the search warrant, on defendant's motion to suppress on the felony charge in Superior Court.
Whether we have jurisdiction to hear this appeal is the threshold issue. The State's right to appeal derives solely from applicable statutes, which must be strictly construed. State v. Harrell, 279 N.C. 464, 183 S.E.2d 638 (1971); State v. Dobson, 51 N.C. App. 445, 276 S.E.2d 480 (1981). G.S. 15A-1448(a)(1) requires that notice of appeal be given within ten days after entry of judgment. This the State did, by giving oral notice of appeal on 13 May 1981, the day judgment was entered. The State did not, however, file the prosecutor's certificate required by G.S. 15A-979(c)*fn1 until 3 June 1981, a date outside the ten day period of G.S. 15A-1448(a)(1). In its recent decision in State v. Turner, N.C. (No. 166A81, filed 30 March 1982), our Supreme Court reversed the decision of the Court of Appeals, reported at 54 N.C. App. 631, 284 S.E.2d 142 (1981), and held that G.S. 15A-1448(a)(1) and G.S. 15A-979(c) need not be construed together to require that the prosecutor's certificate also be filed within ten days of judgment. "We hold that the certificate envisioned by G.S. 15A-979(c) is timely filed if it is filed prior to the certification of the record on appeal to the appellate division." The prosecutor's certificate in this case having been filed on 3 June 1981, and the record on appeal having been filed 2 July 1981, we hold that the certificate required by G.S. 15A-979(c) was timely filed, and that this Court has jurisdiction to consider the State's appeal in this case. This assignment of error is therefore overruled.
The determinative issue in this appeal is whether the State is collaterally estopped from proceeding under the search warrant on the felony charge, after the District Court in the misdemeanor case ordered the same warrant quashed on defendant's motion to suppress. Applying the criteria set out for application of the doctrine of collateral estoppel in King v. Grindstaff, 284 N.C. 348, 200 S.E.2d 799 (1973), defendant contends that the same issue was involved in both motions to suppress: the validity of the search warrant; that this issue was raised and actually litigated in the district court; the warrant's validity was material and relevant to the disposition in the district court; and that the outcome, or granting of defendant's suppression motion, was necessary and essential to the resulting judgment, which was a voluntary dismissal by the State of the misdemeanor charge against defendant.
Our courts have recognized the utility and equity of applying the doctrine of collateral estoppel to criminal cases where the requisite conditions have been met. Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970); see King v. Grindstaff, supra. Our review of this case indicates that the controlling factor here is not whether the common law doctrine of collateral estoppel applies, however, but whether such an application, under these facts, would be consistent with this state's criminal procedure statutes.
Defendant's case was calendared in District Court for the morning of 23 October 1980, at which time defendant was to be tried on the misdemeanor charge and a preliminary hearing was to be held on the three felony counts. Defendant's cases were not called until the afternoon session of court, however, and by then the State's witnesses were unavailable to testify. On defendant's motion, Judge Harris agreed to hear only defendant's motion to suppress evidence in the misdemeanor case; he further decided not to call the felony cases for preliminary hearing at that time. Judge Harris then granted defendant's motion to suppress, ordered the warrant quashed, and the State dismissed the misdemeanor charge against defendant. Defendant later appeared in District Court for preliminary hearing on the felony charges, but the State announced in open court that it would not afford defendant a preliminary hearing; instead, it would seek bills of indictment directly from the grand jury. True bills of indictment as
to all three felonies were returned by the grand jury on 20 January 1981.
Under our criminal procedure statutes, the State has two ways in which it may bring a defendant to trial on a felony charge. Pursuant to G.S. 15A-612(a)(1), the State first may bring a probable cause hearing against defendant in District Court. If the District Court determines there is probable cause, defendant's case is bound over to Superior Court for trial. G.S. 15A-612(a)(1); G.S. 15A-627(a). If the District Court finds no probable cause, it must dismiss the charges against defendant. G.S. 15A-612(a)(3). Section (b) of that statute provides, however, that "No finding made by a judge under this section precludes the State from instituting a subsequent prosecution for the same offense." Thus, despite a finding of no probable cause made by a District Court, the State may subsequently seek an indictment on the same felony charge. G.S. 15A-627; State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Boltinhouse, 49 N.C. App. 665, 272 S.E.2d 148 (1980); see G.S. ...