State v. Taylor , 8 N.C. App. 544 ( 1970 )

MORRIS, J.

Defendant brings forward two assignments of error.

He contends that the court erred in finding that he was not indigent and not entitled to court-appointed counsel. He cites no authority but argues that he had appointed counsel for his preliminary hearing and Judge Cohoon found him to be an indigent, so he must have been an indigent at all times in between. The record clearly reveals that he had some $820 in assets upon his own sworn testimony at the time of Judge Copeland’s determination. We fail to see how defendant has been prejudiced. He, by his own actions, failed to have his appeal’ docketed in time, but the court, nevertheless, ordered counsel appointed to file a petition for certiorari. His ease has been reviewed on its merits.

Defendant's other assignment of error is directed to the lack of jurisdiction of the Superior Court to enter judgment on the two misdemeanor charges (69CR10089 and 69CR10108). Defendant’s position is well taken. G.S. 7A-272(a) gives to the district court, “Except as provided in this article,” exclusive, original jurisdiction over “criminal actions . . . below the grade of felony, and the same are hereby declared to be petty misdemeanors.”

By G.S. 7A-271(a) the superior court is given exclusive, original jurisdiction over all criminal actions not assigned to the district court division except (among others not pertinent here) that it may try a misdemeanor when the conviction is appealed to the superior court for trial de novo. G.S. 7A-271 (a) (5).

Here defendant was not tried in the District Court upon the warrants and there was, therefore, no appeal from the District Court to the Superior Court.

We do not agree that this inadvertence entitles defendant to a new trial on all the charges. The sentence imposed was less than the maximum sentence he could have received after the felony cases were consolidated for judgment.

However, defendant is entitled to a trial on the misdemeanor charges. Therefore, the judgments in cases Nos. 69CR10089 and 69CR10108 are vacated and these two numbers ordered deleted from the commitment. These two cases are remanded to the Superior Court for immediate transfer to the District Court for trial.

Error and remanded as to cases Nos. 69CR10089 and 69CR10108 only — judgment affirmed in all other cases.

MallaRD, C.J., and Graham, J., concur.