in the Court of Appeals 15 November 2017.
by defendant from order entered 13 July 2016 by Judge
Christopher W. Bragg in Union County Superior Court No. 13
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender David W. Andrews, for defendant-appellant.
issue presented is whether the trial court lacked subject
matter jurisdiction to enter an order denying defendant's
motion for post-conviction DNA testing pursuant to N.C. Gen.
Stat. § 15A-269 while defendant's appeal from the
original judgment of conviction was pending. We conclude that
the trial court lacked subject matter jurisdiction, and
vacate the court's order.
Antravious Quanealious Briggs was convicted of attempted
second-degree sexual offense and sentenced to 73-100 months
in prison on 10 November 2014. Defendant gave notice of
appeal the same day. On 6 April 2016, while his appeal was
pending in this Court, defendant filed a pro se
Motion to Locate and Preserve Evidence and Motion for
Post-Conviction DNA Testing pursuant to N.C. Gen. Stat.
§ 15A-269. The trial court denied defendant's motion
on 13 July 2016, while defendant's appeal was still
pending. Defendant timely filed notice of appeal from the
denial of his motion for post-conviction DNA testing. On 16
August 2016, this Court issued an opinion in defendant's
original appeal, vacating his sentence and remanding the case
to the trial court for re-sentencing. State v.
Briggs, __ N.C.App. __, 790 S.E.2d 671 (2016). The
mandate issued on 6 September 2016.
appeal, defendant argues that the trial court lacked subject
matter jurisdiction to enter the order denying his motion for
post-conviction DNA testing because the trial court was
divested of jurisdiction over the case from the date on which
defendant gave his initial notice of appeal of the 10
November 2014 judgment until the date on which this
Court's mandate issued.
a trial court has subject-matter jurisdiction is a question
of law, reviewed de novo on appeal." State
v. Herman, 221 N.C.App. 204, 209, 726 S.E.2d 863, 866
(2012) (citation omitted). Under de novo review,
this Court considers the matter anew and freely substitutes
its own judgment for that of the trial court. State v.
Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294
(2008). Lack of subject matter jurisdiction may be raised by
any party "at any time, even for the first time on
appeal[.]" State v. Kostick, 233 N.C.App. 62,
72, 755 S.E.2d 411, 418 (2014).
matter jurisdiction is "the authority of a court to
adjudicate the type of controversy presented by the action
before it, and is conferred upon the courts by either the
North Carolina Constitution or by statute." State v.
Petty, 212 N.C.App. 368, 371, 711 S.E.2d 509, 512 (2011)
(citations and quotation marks omitted) (alterations
omitted). "A trial court must have subject matter
jurisdiction over a case in order to act in that case."
State v. Satanek, 190 N.C.App. 653, 656, 660 S.E.2d
623, 625 (2008). Where a court enters an order without
jurisdiction to do so, the order is void ab initio,
State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179,
182 (1986), and "the appropriate action on the part of
the appellate court is to arrest judgment or vacate [the]
order entered without authority." State v.
Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).
in criminal cases, "a particular judge's
jurisdiction over a particular case terminates at the end of
the session at which a particular case is heard and
decided." Petty, 212 N.C.App. at 374, 711
S.E.2d at 513. Even where a statute allows the trial court to
act beyond the close of the original session, "[t]he
jurisdiction of the trial court with regard to the case"
will remain divested as of the filing of a notice of appeal.
N.C. Gen. Stat. § 15A-1448(a)(3) (2016); State v.
Williams, 177 N.C.App. 725, 731, 630 S.E.2d 216, 221
(2006), disc. review denied, 360 N.C. 581, 636
S.E.2d 198 (2006); Petty, 212 N.C.App. at 373, 711
S.E.2d at 513. Once a notice of appeal has been filed, the
trial court retains jurisdiction only over matters that are
"ancillary to the appeal[.]" N.C. Gen. Stat. §
15A-1453 (2016); State v. Davis, 123 N.C.App. 240,
242, 472 S.E.2d 392, 393 (1996). A matter that is ancillary
to the appeal typically involves the correction of a clerical
error, as doing so does not implicate the trial court
"exercis[ing] any judicial discretion or undertak[ing]
any judicial reasoning[.]" State v. Everette,
237 N.C.App. 35, 43, 764 S.E.2d 634, 640 (2014); see
e.g., Davis, 123 N.C.App. at 242-43, 472 S.E.2d
at 393-94. On the other hand, a "trial court lacks
jurisdiction to correct judicial errors, or address ...