State v. Oxendine

MORRIS, Judge. This case was tried on 20 October 1971 and judgment entered on the jury verdict. The record on appeal was not docketed until 8 February 1972, well beyond the time limit provided by our rules. No order extending the time for docketing appears in the record. For failure of appellant to docket the record on appeal within the time allowed by the rules of this Court, this appeal is dismissed. Rule 5, Rules of Practice in the Court of Appeals. Keyes v. Oil Co., 13 N.C. App. 645, 186 S.E. 2d 678 (1972); Phillips v. Wrenn Brothers, 12 N.C. App. 35, 182 S.E. 2d 285 (1971), cert. denied 279 N.C. 619 (1971); State v. Burgess, 11 N.C. App. 430, 181 S.E. 2d 120 (1971), cert. denied 279 N.C. 350 (1971). [223] Nevertheless, we have carefully reviewed the record, and prejudicial error sufficient to warrant a new trial is not shown. Defendant contends on appeal that even if there is no error in the trial, he should have the benefit of the reduced sentence of six months provided in the Controlled Substances Act, effective January 1972. He relies upon State v. McIntyre, 13 N.C. App. 479, 186 S.E. 2d 207 (1972), rev’d. 281 N.C. 304, 188 S.E. 2d 304 (1972). The Supreme Court, in State v. Harvey, 281 N.C. 1, 20, 187 S.E. 2d 706 (1972), held that “the preexisting law as to prosecution and punishment as set forth in Articles 5 and 5A, Chapter 90 of the General Statutes as written prior to 1 January 1972, remains in full force and effect as to offenses committed prior to 1 January 1972.” Appeal dismissed. Judges Vaughn and Graham concur.