STATE v. WAMBACH (2000)

On 3 January 1995, the North Carolina Department of Revenue notified defendant of a controlled substance tax assessment of $3,210.67 for thirty-eight dosage units of cocaine.   The Department of Revenue on 7 January 1995 garnished $1,874.50 which was in defendant's possession at the time of his arrest.   Defendant was subsequently convicted on 16 August 1995 of possession with intent to sell and deliver cocaine, resisting a public officer, and determined to be an habitual felon.   The trial court sentenced him to a term of 96 to 125 months imprisonment, and defendant appealed.   This Court found no error on appeal.  State v. Wambach, 122 N.C.App. 580, 475 S.E.2d 259 (1996) (unpublished), cert. denied, 345 N.C. 645, 483 S.E.2d 717 (1997).

On 12 November 1998, defendant filed a pro se petition for writ of habeas corpus.   Defendant alleged that he had been subjected to double jeopardy as a result of an improperly imposed second punishment.   After hearing the matter on 1 April 1999, the trial court determined that defendant had not been placed in jeopardy twice for the same offense and denied defendant's petition.   From the trial court's order, defendant appeals.

Defendant contends the trial court committed reversible error by denying his petition for writ of habeas corpus.   He argues the trial court erred by not following precedent from the United States Court of Appeals for the Fourth Circuit which found North Carolina's drug tax (N.C. Gen.Stat. § 105-113.105 et seq. (1999)) to be a criminal penalty.   See Lynn v. West, 134 F.3d 582 (4th Cir.1998), cert. denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998).   Defendant asks that his convictions, which were subsequent to his partial payment of the drug tax, be vacated.

As an initial matter, this Court notes that petitioner has no appeal of right from the trial court's order.

In this jurisdiction the rule is firmly established that no appeal lies from an order made in a habeas corpus proceeding instituted under N.C. Gen. Stats., ch. 17 by a prisoner to inquire into the legality of his restraint.   The remedy, if any, is by petition for certiorari addressed to the sound discretion of the appropriate appellate court.

State v. Niccum, 293 N.C. 276, 278, 238 S.E.2d 141, 143 (1977).   Accordingly, defendant's appeal is dismissed.

Defendant's counsel requests that “in the event this Court deems appeal inappropriate, to consider the issues herein by way of certiorari pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure, due to their constitutional nature.”   However, the constitutionality of the assessment and collection of the drug tax has been previously upheld in State v. Ballenger, 123 N.C.App. 179, 472 S.E.2d 572 (1996), aff'd per curiam, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817, 118 S.Ct. 68, 139 L.Ed.2d 29 (1997), and State v. Creason, 123 N.C.App. 495, 473 S.E.2d 771 (1996), aff'd. per curiam, 346 N.C. 165, 484 S.E.2d 525 (1997).   As for the applicability of the Lynn decision, “with the exception of decisions of the United States Supreme Court, federal appellate decisions are not binding upon either the appellate or trial courts of this State.”  State v. Adams, 132 N.C.App. 819, 820, 513 S.E.2d 588, 589, disc. review denied, 350 N.C. 836, 538S.E.2d 570, cert. denied, 528 U.S. 1022, 120 S.Ct. 534, 145 L.Ed.2d 414 (1999).   We therefore decline to address these issues pursuant to a writ of certiorari.

Dismissed.

SMITH, Judge.

Chief Judge EAGLES and Judge WALKER concur.