An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance with 

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1310

Filed: 19 May 2015

Mecklenburg County, No. 12 CR 246557

STATE OF NORTH CAROLINA

v.

BRENT TYLER MILLER

Appeal by the State from order entered 2 June 2014 by Judge Linwood O. Foust 

in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 April 2015.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, 

for the State. 

Tin, Fulton, Walker, & Owen, PLLC, by Noell P. Tin, for defendant. 

TYSON, Judge.

The State appeals from an order orally rendered in superior court affirming 

the district court’s order dismissing Defendant’s criminal charges. We dismiss the 

appeal. 

I. Background

Defendant was charged with driving while impaired on 26 October 2012. On 

7 June 2013, Defendant appeared before the district court on his pretrial “motion to 

dismiss based upon an illegal stop.” The district court heard the charging officer’s 
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testimony, and concluded the officer was without probable cause to stop Defendant’s 

vehicle. The district court entered a written order on 12 July 2013, which included 

its findings of fact and conclusions of law, and allowed Defendant’s motion to dismiss.

The State filed notice of appeal to superior court from the district court’s order 

pursuant to N.C. Gen. Stat. § 20-38.7, and requested a de novo hearing in superior 

court. Defendant filed a motion to dismiss the State’s appeal to superior court, and 

argued the State’s notice of appeal was insufficient, because it did not include specific 

objections to the district court’s findings of fact or order. 

The matter was heard before the superior court on 12 November 2013. After 

“hearing arguments of counsel and [a] review of the court file and various documents 

presented by counsel,” the superior court granted Defendant’s motion to dismiss the 

State’s appeal and denied the State’s request for a de novo hearing. The court 

determined “the State could not articulate in the written Notice of Appeal which 

specific FINDINGS OF FACT or CONCLUSIONS OF LAW the State objected.” The 

superior court reviewed the district court’s findings of fact and conclusions of law, 

and affirmed the district court’s order. The superior court remanded the case to the 

district court for entry of a final order. 

On 16 January 2014, the district court entered a final order granting 

Defendant’s pretrial motion and dismissed the charge. That same day, the State filed 

“notice of appeal” to superior court. The “notice of appeal” states the district court’s 
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final order granting Defendant’s motion to suppress and dismissing the charge was 

“contrary to law and [the State] appeals the final ruling to [s]uperior [c]ourt.” 

The matter came before the superior court on 2 June 2014. The prosecutor 

stated that “the State [was] not asking for a new hearing on the matter” and was “just 

asking the [c]ourt to affirm the district court’s final order,” because “that’s the only 

way for the State to appeal to the Court of Appeals.” The court orally affirmed the 

district court’s judgment in open court. The State entered oral notice of appeal. The 

State filed written notice of appeal from the superior court’s 2 June 2014 order, and 

filed a written certification that the appeal is not taken for the purpose of delay 

pursuant to N.C. Gen. Stat. § 15A-1432(e). 

II. Issues

On appeal, the State argues the superior court erred on 12 November 2013 by 

denying the State an evidentiary hearing de novo on its appeal from the district 

court’s order granting Defendant’s motion to suppress. 

Defendant filed a motion to dismiss the State’s appeal contemporaneously with 

his brief, and argues the State failed to give adequate notice of appeal to invoke the 

jurisdiction of this Court. Defendant contends the State’s appeal should be dismissed 

because the State failed to designate the 12 November 2013 order in its notice of 

appeal, and the statute cited in the State’s notice of appeal, N.C. Gen. Stat. § 15A1445(a)(1), does not authorize the State to appeal. 
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III. The State’s Right to Appeal

The State’s right to appeal in a criminal proceeding is entirely statutory. State 

v. Murrell, 54 N.C. App. 342, 343, 283 S.E.2d 173, 173 (1981), disc. review denied, 304 

N.C. 731, 288 S.E.2d 804 (1982). Statutes granting the State a right of appeal must 

be strictly construed. Id. 

As part of the Motor Vehicle Driver Protection Act of 2006, our legislature 

afforded the State a right to appeal from the district court’s “preliminary indication” 

of whether a defendant’s motion to suppress should be granted or denied in an implied 

consent case. N.C. Gen. Stat. § 20-38.6(f) (2013), N.C. Gen. Stat. § 20-38.7 (2013). 

After hearing the defendant’s motion to suppress, “[t]he [district court] judge shall 

set forth in writing the findings of fact and conclusions of law and preliminarily 

indicate whether the motion should be granted or denied.” N.C. Gen. Stat. § 20-38.6(f) 

(2013). “If the judge preliminarily indicates the motion should be granted, the judge 

shall not enter a final judgment on the motion until after the State has appealed to 

superior court or has indicated it does not intend to appeal.” Id. The district court 

followed this procedure correctly in this case. 

The State’s appeal from the district court judge’s “preliminary indication” is 

governed by N.C. Gen. Stat. § 20-38.7 (2013). The statute provides: 

(a) The State may appeal to superior court any district 

court preliminary determination granting a motion to 

suppress or dismiss. If there is a dispute about the findings 

of fact, the superior court shall not be bound by the findings 

of the district court but shall determine the matter de novo.
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Any further appeal shall be governed by Article 90 of 

Chapter 15A of the General Statutes.

N.C. Gen. Stat. § 20-38.7(a) (2013). 

After the superior court considers the State’s appeal from the district court’s 

preliminary indication pursuant to N.C. Gen. Stat. § 20-38.7(a), the court must “enter 

an order remanding the matter to the district court with instructions to finally grant 

or deny the defendant’s pretrial motion.” State v. Fowler, 197 N.C. App. 1, 11, 676 

S.E.2d 523, 535 (2009), disc. review denied, 364 N.C. 129, 696 S.E.2d 695 (2010). 

The statute does not provide the State a statutory right to appeal to the 

Appellate Division from the superior court’s interlocutory order remanding the case 

to the district court for entry of a final order. Id. at 7, 676 S.E.2d at 532. Furthermore, 

the State does not have a statutory right to appeal to the Appellate Division from the 

district court’s final order granting a defendant’s pretrial motion to suppress 

evidence. Id. at 29, 676 S.E.2d at 546. 

Our Court has held “the State has a right of appeal to the superior court from 

a district court’s final dismissal of criminal charges against a defendant pursuant to 

N.C.G.S. § 15A-1432(a)(1). Id. at 30, 676 S.E.2d at 546 (emphasis in original). The 

State also has a right of appeal to the Appellate Division from a superior court’s order

affirming a district court’s dismissal pursuant to N.C.G.S. § 15A-1432(e).” Id.

The statute, entitled “Appeals by State from district court judge,” provides: 
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(a) Unless the rule against double jeopardy prohibits 

further prosecution, the State may appeal from the district 

court judge to the superior court:

(1) When there has been a decision or judgment dismissing 

criminal charges as to one or more counts[.]

. . . . 

(e) If the superior court finds that the order of the 

district court was correct, it must enter an order affirming 

the judgment of the district court. The State may appeal 

the order of the superior court to the appellate division 

upon certificate by the district attorney to the judge who 

affirmed the judgment that the appeal is not taken for the 

purpose of delay.

N.C. Gen. Stat. § 15A-1432(a) and (e) (2013). 

Here, while the State’s notice of appeal cites N.C. Gen. Stat. § 15A-1445(a)(1) 

as the statute authorizing the appeal, the State is purporting to appeal from the 

superior court’s 2 June 2014 order affirming the district court’s dismissal of the 

criminal charges pursuant to N.C. Gen. Stat § 15A-1432. See State v. Bryan, __ N.C. 

App. __, __ 749 S.E.2d 900, 903 (2013), disc. review denied, 367 N.C. 330, 755 S.E.2d 

615 (2014) (N.C. Gen. Stat. § 15A-1445(a)(1) is “applicable to final orders issued by a 

superior court acting in its original jurisdiction.” (Emphasis supplied)) .

On 2 June 2014, the superior court orally affirmed the judgment of the district 

court dismissing Defendant’s charges. However, the record on appeal in this case 

does not include a written copy of the order appealed from. “‘Entry’ of an order occurs 

when it is reduced to writing, signed by the trial court, and filed with the clerk of 
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court.” State v. Gary, 132 N.C. App. 40, 42, 510 S.E.2d 387, 388, cert. denied, 350 N.C. 

312, 535 S.E.2d 35 (1999); see also Southern Furn. Hdwe., Inc. v. Branch Banking & 

Tr. Co., 136 N.C. App. 695, 702, 526 S.E.2d 197, 201 (2000) (“When an oral order is 

not reduced to writing, it is non-existent . . . .” (citations omitted)).

IV. Conclusion

It is not appropriate for us to treat the State’s purported notice of appeal as a 

petition to issue the writ of certiorari in this case. See N.C. R. App. P. Rule 21(a) (1)

(2015) (The writ may be “issued to permit review of the judgments and orders of trial 

tribunals when the right to prosecute an appeal has been lost by failure to take timely 

action, or when no right of appeal from an interlocutory order exists,” or for review of

an order of the trial court denying a motion for appropriate relief. (Emphasis 

supplied)). In the absence of a written order, we are without jurisdiction to hear the 

State’s appeal. The appeal is dismissed. 

DISMISSED.

Judges CALABRIA and STROUD concur. 

Report per Rule 30(e).