State v. McDonald , 55 N.C. App. 393 ( 1982 )

CLARK, Judge.

The general rule is that the State cannot appeal from a judgment in favor of the defendant in a criminal proceeding in the absence of a statute clearly conferring that right. State v. Harrell, 279 N.C. 464, 183 S.E. 2d 638 (1971).

G.S. 15A-979(c) provides that orders of the superior court granting motions to suppress evidence are appealable to the appellate division prior to trial “upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case.” As this court stated in State v. Dobson, 51 N.C. App. 445, 276 S.E. 2d 480 (1981), the above-quoted language “constitutes a statutory prerequisite which must be met in order for the State to have the right to appeal, prior to trial, an order granting a motion to suppress. Statutes authorizing an appeal by the prosecution must be strictly construed.” (Citations omitted.) Id. at 446-447, 276 S.E. 2d at 482.

In the present case, there is no indication in the record that the prosecutor certified to Judge Godwin that the appeal was not being taken for the purpose of delay and that the suppressed evidence was essential to the case. The burden is on the State to demonstrate that it has the right to appeal and that it has followed the statutory mandate. State v. Dobson, supra. The State has failed to fulfill the statutory requirements in this case.

Therefore, the appeal by the State is not authorized by statute, and this court has no jurisdiction over the appeal.

Dismissed.

Judges WHICHARD and BECTON concur.