in the Court of Appeals 5 September 2019.
by respondent-juvenile from order entered 12 October 2018 by
Judge Robert Rader in Wake County District Court No. 17 JB
Attorney General Joshua H. Stein, by Assistant Attorney
General Janelle E. Varley, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Amanda S. Hitchcock, for respondent-appellant
"Evan" appeals from a disposition and commitment
order adjudicating him to be a Level 2 delinquent juvenile.
Evan argues on appeal that, after being presented with
evidence that he was mentally ill, the trial court erred by
failing to refer him to the area mental health services
director. After careful review, we vacate the disposition and
commitment order and remand to the trial court for a referral
to the area mental health services director.
relevant facts are few. Between 14 December 2017 and 5
January 2018, a Wake County juvenile court counselor approved
a petition alleging that Evan (1) committed an assault with a
deadly weapon with intent to kill; (2) possessed stolen
property; and (3) committed malicious conduct upon a
government official by spitting on him. Evan admitted to the
charges of assault with a deadly weapon with intent to kill
and malicious conduct, and the State dismissed the charge of
possession of stolen property. The Honorable Craig Croom
adjudicated Evan as delinquent, entered a Level 2
disposition, and ordered twelve months' probation. One
month later, a juvenile court counselor filed a motion for
review, alleging that Evan violated his probation. On 9
October 2018, the motion for review came on for hearing
before the Honorable Robert Rader in Wake County District
Court. Judge Rader found Evan in willful violation of his
probation, revoked his probation, and ordered that Evan be
committed to a youth development center with the Division of
Adult Correction and Juvenile Justice for an indefinite
period, to end no later than Evan's eighteenth birthday.
for Appellate Review
we address our jurisdiction to consider the merits of
Evan's appeal. Evan filed written notice of appeal on 10
October 2018. Typed into the trial court's order at the
bottom of the page is the date "10/9/2018."
However, the order is additionally-and quite
noticeably-stamped with "2018 OCT 12 A 11:07,"
indicating that the order was filed after Evan filed
his notice of appeal on 10 October.
a party may file notice of appeal, there must first be an
entry of judgment. See N.C. Gen. Stat. § 1A-1,
Rule 58 (2017) ("[A] judgment is entered when it is
reduced to writing, signed by the judge, and filed with the
clerk of court pursuant to Rule 5."). "When a
defendant has not properly given notice of appeal, this Court
is without jurisdiction to hear the appeal." See
State v. Webber, 190 N.C.App. 649, 651, 660 S.E.2d 621,
622 (2008) (quotation marks omitted). Consequently, Evan
would need to request-and we would need to issue-a writ of
certiorari to have his case reviewed. See N.C. R.
App. P. 21(a). No petition for writ of certiorari was ever
filed. However, this Court has the discretionary authority,
pursuant to Appellate Rule 21, to "treat the purported
appeal as a petition for writ of certiorari and grant it in
our discretion." Luther v. Seawell, 191
N.C.App. 139, 142, 662 S.E.2d 1, 3 (2008).
reasons more fully explained below, we find the facts of
Evan's case worthy of treating his brief as a petition
for writ of certiorari. We also note that the State has not
raised this jurisdictional issue in its brief, and we do not
contemplate any resulting prejudice to the State. Thus, in
our discretion, we invoke this Court's authority pursuant
to our caselaw and Appellate Rule 21, and proceed to the
merits of Evan's appeal.
argues on appeal that the trial court erred by failing to
refer him to the area mental health services director, after
being presented with ...