Much ink has been spilled exploring the porous jurisdictional border between the trial division and the appellate division. A recent opinion from the Court of Appeals addresses this issue again.
State v. Johnson, No. COA22-363 (filed 18 April 2023), involves a police search of a defendant accused of trafficking drugs, but the facts of the encounter need not detain us. Instead, let’s explore the trial and appellate procedures that ensued. The defendant moved to suppress evidence found during the search. At the conclusion of a hearing held on 8 November 2021, the trial court allowed the motion to suppress, while at the same time providing oral findings of fact and conclusions of law. The State entered oral notice of appeal.
The following day, the trial court entered a Judgment/Order on form AOC-CR-305. The form did not repeat the findings of fact and conclusions of law that the trial court had made at the hearing, but instead stated only that “Defendant’s motion to suppress is granted by the Court. The State gives notice of appeal.” The Judgment/Order also included a statement that “Pending further orders from the Court of Appeals this Court will retain jurisdiction over this case.” The State filed a written notice of appeal on 16 November 2021.
After settling and filing the record on appeal in May 2022, the State filed its opening appellant’s brief in the Court of Appeals on 6 September 2022. Two days later, the defendant’s attorney realized that an order which he had drafted and which had been approved by the State, was not in the case file. Worse, the order had not been signed by the judge or filed with the Vance County Clerk of Superior Court. The trial court signed and filed the order on 3 October 2022.
The defendant thereafter filed his Court of Appeals brief on 20 January 2023, making references to the trial court’s 3 October 2022 order. The State responded with a reply brief, arguing that the 3 October 2022 order was a nullity because it was entered after the trial court was divested of jurisdiction. The defendant countered by contending that new arguments could not be raised for the first time in a reply brief.
The Court of Appeals noted that the 3 October 2022 order was entered after the record on appeal had been settled and filed, and after the State submitted its initial brief. Relying on Rule of Appellate Procedure 28, which states that “Any reply brief…shall be limited to a concise rebuttal of arguments sent out in the appellee’s brief,” the Court of Appeals held that the State could challenge that order in its reply brief.
As an aside, and for what it’s worth, it seems to me that the State’s contention falls squarely within the general rule that subject matter jurisdiction can be raised at any time. See Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). If so, there should be no reason preventing a reply brief from being the vehicle for a jurisdictional challenge. But I digress; tactical use of such a process suggests other issues and that question is not before us now.
After ruling that the State’s argument could be considered, the Court of Appeals turned to the question of which court had jurisdiction over what. The defendant argued that the trial court retained jurisdiction over the record. The State disagreed, pointing out that the October 3, 2022 order contained new findings of fact and conclusions of law that were not reflected in the court’s oral order.
The Court of Appeals acknowledged that a trial court retains jurisdiction over ancillary matters and also to correct scrivener’s errors and the like. But it then cited N.C.G.S. § 15A-1448(a)(3) for the proposition that “the trial court has jurisdiction until notice of appeal has been given and 14 days have passed,” quoting State v. Lebeau, 271 N.C. App. 111, 114, 843 S.E.2d 317, 319-20 (2020). Because more than fourteen days had elapsed since the State noted its appeal, the Court of Appeals determined that the trial court was divested of jurisdiction to enter the 3 October 2022 order.
As for the defendant’s attempts to drag the focus of the appeal to the status of the record on appeal, the Court of Appeals declined to get into a convoluted discussion whether the trial court had amended the record. The Court of Appeals cut the Gordian knot by citing State v. Dixon, 139 N.C. App. 332, 338, 533 S.E.2d 297, 302 (2000), which held that “[o]nce the case has been docketed in the appellate court, the appellate court acquires jurisdiction over the record.” Accordingly, the Court of Appeals vacated the trial court’s October 3, 2022 suppression order. The Court then reviewed the evidence related to the search, reversed the trial court’s November 2021 ruling on the defendant’s suppression motion, and remanded the case for a trial.
The nature of appellate practice is such that it is unlikely that we will ever see a “one-size-fits-all” rule or interpretation addressing the status of trial court versus appellate court jurisdiction on appeal. Nevertheless, the bright-line rule established in this unanimous published opinion gives useful guidance. Could counsel or the trial court have asked the appellate court to return the case to allow the trial court to regain jurisdiction and correct the record? Maybe, but no one did, so that may be a question for another day. For now, though, once the record on appeal is filed with the reviewing court, this opinion indicates that the trial court should refrain from entering any orders modifying the ruling being reviewed on appeal.