State v. Felmet

MARTIN (Harry C.), Judge. The superior court has no jurisdiction to try a defendant upon a specific misdemeanor charge on a warrant, unless he is first tried and convicted in the district court, and then appeals to the superior court from the sentence pronounced against him on his conviction for such misdemeanor. State v. Hall, 240 N.C. 109, 81 S.E. 2d 189 (1954); State v. Byrd, 4 N.C. App. 672, 167 S.E. 2d 522 (1969). Defendant was convicted of trespass, a misdemeanor proscribed by N.C.G.S. 14-134. The district courts of North Carolina have exclusive original jurisdiction of misdemeanors. N.C. Gen. Stat. 7A-272; State v. McKoy, 44 N.C. App. 516, 261 S.E. 2d 226, cert. denied, 299 N.C. 546, 265 S.E. 2d 405 (1980). The jurisdiction of the superior court for the trial of a specific misdemeanor is derivative and arises only upon an appeal from a conviction of the misdemeanor in the district court. State v. Guffey, 283 N.C. 94, 194 S.E. 2d 827 (1973); State v. McKoy, supra. The record fails to disclose jurisdiction in the superior court. As that court had no jurisdiction, insofar as this record discloses, we have none on appeal. Therefore, the appeal must be dismissed. State v. Banks, 241 N.C. 572, 86 S.E. 2d 76 (1955); State v. Byrd, supra. The question of jurisdiction is not raised or discussed by the defendant or the Attorney General in the briefs. The Court of Appeals will take notice ex mero motu of the failure of the record to show jurisdiction in the court entering the judgment appealed. State v. Guffey, supra; State v. Johnson, 251 N.C. 339, 111 S.E. 2d 297 (1959); State v. McKoy, supra; State v. Byrd, supra. [203] In this case, the appellant had the duty to see that the record on appeal was properly made up and transmitted to this Court. State v. Stubbs, 265 N.C. 420, 144 S.E. 2d 262 (1965); State v. Byrd, supra. For the failure of the record to show jurisdiction, the appeal must be dismissed. Appeal dismissed. Judges Webb and Wells concur.