State v. Gilliam

235 S.E.2d 421 (1977)

STATE of North Carolina v. William GILLIAM, Jr.

No. 762SC999.

Court of Appeals of North Carolina.

June 15, 1977.

*422 Atty. Gen. Rufus L. Edmisten by Special Deputy Atty. Gen. John R. B. Matthis and Associate Attorney Acie L. Ward, Raleigh, for the State.

Milton E. Moore, Williamston, for defendant-appellant.

CLARK, Judge.

An appeal is subject to dismissal for failure to comply with the North Carolina Rules of Appellate Procedure. Ledwell v. County of Randolph, 31 N.C.App. 522, 229 S.E.2d 836 (1976).

It is clear from the argument in defendant's brief concerning the charge on reckless driving that he intended to appeal from the judgment in case No. 76CR905. Rule 9(b)(3)(vii) provides that "the record on appeal in criminal actions shall contain. . . copies of the verdict and of the judgment . . .." A copy of the judgment in No. 76CR905 was not included in the record on appeal. The "minutes" of the court that were included are not a substitute for a copy of the judgment. A judgment is a necessary part of the record. State v. Willis, 285 N.C. 195, 204 S.E.2d 33 (1974). When a necessary part of the record has been omitted, the appeal will be dismissed. State v. Dobbs, 234 N.C. 560, 67 S.E.2d 751 (1951); 4 Strong N.C. Index, Criminal Law § 157.2 (3d ed. 1976).

Defendant also violated Rule 10(b)(2) with respect to the appeal from No. 76CR905. Rule 10(b)(2) provides that "An exception to instructions given the jury shall identify the portion in question by setting it within brackets or by any other clear means of reference." Defendant's assignment of error with respect to the charge on reckless driving is based upon five (5) exceptions. Each of these exceptions is listed at the end of a paragraph. There are no brackets or any other feature to indicate whether the preceding phrase, sentence, paragraph, or paragraphs are the subject of the exception.

The appeal from No. 76CR904 as well as that from No. 76CR905 is subject to dismissal for violation of Rule 11(e). Rule 11(e) provides that

"Within 10 days after the record on appeal has been settled by any of the procedures provided in this Rule 11, the appellant shall present the items constituting the record on appeal to the clerk of superior court for certification. . ."

The clear implication of this rule is that the record must be settled before certification. In the present case the record was certified on 26 October 1976 and settled on 27 October 1976. The appellate court must be assured that it has before it the certification of the clerk to the settled record, not the certification of the clerk to a record presented by the appellant. It is the duty of the appellant to see that the record is properly made up and transmitted. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965).

*423 For these several violations of the Rules of Appellate Procedure, the appeal is

Dismissed.

BROCK, C. J., and VAUGHN, J., concur.