in the Court of Appeals 9 August 2017.
by the State from an order granting Defendant's Motion to
Suppress, entered 31 October 2016 by Judge John E. Nobles,
Jr. in Onslow County No. 15CRS53886 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kristin J. Uicker, for the State.
Jeffrey S. Miller, for Defendant-Appellee.
State appeals from the trial court's grant of Lester Alan
Walker's ("Defendant") motion to suppress. On
appeal, the State contends the trial court erred by: (1)
entering the 31 October 2016 order after the State gave its
notice of appeal; and (2) granting Defendant's motion to
suppress. After careful review, we hold the trial court did
not err by entering the 31 October 2016 order and granting
the motion to suppress.
July 2015, State Trooper Jonathan Cody (the
"Trooper") of the North Carolina Highway Patrol was
on routine patrol on U.S. 258. At approximately 5:00 p.m.,
dispatch notified him that a driver ("the
informant") reported another driver ("the
driver") for driving while intoxicated. The informant
reported the driver was driving from the Hubert area towards
Jacksonville, traveling at speeds of approximately 80 to 100
miles per hour, while drinking a beer. He also claimed the
driver drove "very erratically, " and almost ran
him off the road "a few times."
the Trooper traveled towards Jacksonville in response to the
notification from dispatch, the informant flagged him down.
The informant told the Trooper that the vehicle in question,
although no longer visible, had just passed through the
intersection on U.S. 258 heading towards Richlands. The
Trooper proceeded through the intersection on U.S. 258
towards Richlands, stopping Defendant's vehicle within
approximately one-tenth of a mile from the intersection. At
some point, the vehicle in question was described as a
"gray Ford passenger vehicle[, ]" however it is
unclear whether the Trooper was given this description before
or after he stopped Defendant. Defendant was arrested and
charged with driving while impaired, and careless and
to trial, Defendant filed a motion to suppress the evidence
seized as a result of Defendant being stopped by the Trooper.
On 9 June 2016, Onslow County District Court held a hearing
on this motion, which claimed the evidence obtained by the
stop should be suppressed because the Trooper lacked the
requisite reasonable articulable suspicion to stop Defendant.
The District Court denied the motion to suppress.
Subsequently, Defendant was convicted of driving while
intoxicated, and reckless and careless driving.
appealed to Superior Court, which held a hearing on
Defendant's motion to suppress on 15 September 2016.
After taking evidence and hearing arguments, the Superior
Court determined the Trooper lacked the reasonable
articulable suspicion required to make the stop, and granted
the motion to suppress in open court. That same day, the
trial court entered a written order stating the motion was
allowed, and directing Defendant's counsel to prepare an
order. The State gave oral notice of appeal after the trial
court announced its decision, and then gave written notice of
appeal on 22 September 2016, once the trial court filed its
15 September 2016 written order. The trial court entered the
written order prepared by Defendant's counsel, as
directed in the 15 September 2016 order, on 31 October 2016.
State argues that the trial court erred: (1) by entering an
order on 31 October 2016; and (2) by granting Defendant's
motion to suppress. We disagree.
I. Authority to Enter the 31 October 2016
State maintains that our Court should base our review solely
on the 15 September 2016 order, arguing the trial court
lacked jurisdiction to enter the 31 October 2016 written
order because the State gave its notice of appeal prior to
that date. We disagree and review the 31 October 2016 order
because "our appellate courts have repeatedly held that
a delay in the entry of findings of fact and conclusions of
law does not amount to prejudicial error." State v.
Lippard, 152 N.C.App. 564, 571, 568 S.E.2d 657, 662
(2002) (citing State v. Horner, 310 N.C. 274, 279,
311 S.E.2d 281, 285 (1984)).
State relies on State v. Grundler, 251 N.C. 177, 11
S.E.2d 1 (1959) to support its argument that the trial court
did not have jurisdiction to enter the 31 October 2016 order,
contending that once the oral and written notices of appeal
are given, the trial court is without further authority to
make orders affecting the merits of the case
effective immediately. See id. at 185, 11 S.E.2d at
7 (explaining that "when appeal entries are noted, the
appeal becomes" instantly effective, and the Superior
Court no longer has the authority "to make orders
affecting the merits of the case"). However,
Grundler does not control this case because the 31
October 2016 order was not a new order affecting the
merits, but, rather, is a chronicle of the findings and
conclusions decided at the hearing. The 15 September 2016
order, which reads: "J. Miller to prepare order[,
]" specifically contemplates this later entry of the 31