STATE v. PERRY (2024)

Defendant Donald Wayne Perry, Jr., pleaded guilty to driving while impaired (DWI) at superior court while preserving his right to appeal the denial of his motion to suppress. On appeal, Defendant requests this Court hold that the trial court erred in denying Defendant's motion to suppress and that his criminal judgment be overturned. We dismiss his appeal because the record fails to demonstrate that the superior court had subject matter jurisdiction to try him.

The record in this case indicates Defendant was tried in the Superior Court of Cabarrus County upon an order issued by a magistrate of Cabarrus County charging Defendant with a DWI. The record does not show Defendant was ever tried in district court on this charge; it only reveals that Defendant was convicted by a plea of guilty and sentenced at Level III, to a minimum term of six months and a maximum term of six months, which was suspended for a period of twelve months of supervised probation. The record fails to disclose derivative jurisdiction in the superior court through appeal of a district court conviction.

When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority. When the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed.

State v. Felmet, 302 N.C. 173, 176 (1981) (citations omitted). Defendant has the duty to ensure the record on appeal is properly compiled. See id. Because we are unable to determine whether the superior court below had jurisdiction, we dismiss this appeal.

DISMISSED.

Report per Rule 30(e).

PER CURIAM.

Panel consisting of Chief Judge DILLON and Judges HAMPSON and CARPENTER.