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North Carolina v. Mack

Filed: May 4, 1982.

STATE OF NORTH CAROLINA
v.
ROBERT LEE MACK



Appeal by defendant from Snepp, Judge. Judgment entered 28 May 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 9 April 1982.

Whichard, Judge. Judges Webb and Wells concur.

Whichard

Judge Snepp denied defendant's motion to suppress introduction of seventeen bags of cocaine which had been seized from defendant's person when he was arrested pursuant to a warrant charging him with uttering a forged check. Defendant then pled guilty to possession of cocaine with intent to sell and deliver. On 28 May 1980 he was sentenced to imprisonment.

Defendant did not timely appeal pursuant to G.S. 15A-979(b) (1978), which provides that an order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty. On 20 July 1981 defendant filed a "Motion for Appropriate Relief" seeking "a new trial, or . . . any other appropriate relief." On 3 August 1981 Judge Burroughs entered an order which stated that upon hearing defendant's motion he had ruled that defendant be allowed to perfect his appeal of the order denying his motion to suppress. Judge Burroughs' order set the time for filing and serving the proposed record on appeal and directed that defendant receive, at public expense, a copy of the transcript of the suppression hearing.

A motion for appropriate relief on the ground that "[t]he court's ruling was contrary to law with regard to motions made before or during the trial, or with regard to the admission or exclusion of evidence" must be made "not more than 10 days after entry of judgment." G.S. 15A-1414. The motion here was made well beyond the requisite ten day period. G.S. 15A-1415 enumerates "the only grounds which [a] defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment." All grounds set forth therein, with one exception, are inapplicable here. Defendant apparently filed his motion

pursuant to that one exception, G.S. 15A-1415(b)(3), which prescribes, as a ground for appropriate relief, that "[t]he conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina." While the motion would be proper on that ground, the trial court lacked jurisdiction to pass on it, because defendant had given notice of appeal and more than ten days had expired since entry of judgment. G.S. 15A-1448(a)(3); see State v. Thompson, 50 N.C. App. 484, 490, 274 S.E.2d 381, 385-386, disc. rev. denied, 302 N.C. 633, 280 S.E.2d 448 (1981). right to perfect an appeal for which the time allowed had long since expired thus was not "appropriate relief" within the power of the trial court to grant. In our discretion, however, we have treated the purported appeal as a petition for a writ of certiorari and have allowed the writ.

The State's evidence at the hearing on the motion to suppress was as follows:

On 13 February 1980 L. D. Blakeney, a member of the Vice and Narcotics Section of the Charlotte Police Department, requested and obtained a search warrant for a designated apartment. He then went there with other officers to execute the warrant. He knew defendant's car; and because the car was not at the apartment, he and the other officers returned to the police station.

Later Blakeney drove by the apartment again and saw defendant's car there. He left and returned with another officer. They observed that defendant's car was still there, and they "noticed two males enter the vehicle and back [it] out of the driveway."

They then called another uniformed officer "to try to get the vehicle stopped." That officer stopped the vehicle, which defendant was driving, at a service station. Blakeney arrived at the scene, and the officer who had stopped defendant's car identified defendant to Blakeney.

Blakeney then arrested defendant pursuant to a warrant for uttering a forged check, which had been issued 28 August 1976 while defendant was in prison. He "then searched [defendant's] person incident to arrest and ...


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