15A-1445 lists the grounds for a state’s appeal from a Superior Court decision in a criminal case. Judge Fullwood’s decision to vacate the habitual felon sentence did not fit any of the 15A-1445 criteria. Regardless of whether the Court of Appeals was correct in ruling that the state could appeal a final judgment but not an order, the state’s appeal still did not satisfy any of the 15A-1445 criteria. That is, even if the state generally could appeal an order that is not a final judgment, the appeal in Starkey still did not satisfy 15A-1445. Specifically, the order did not dismiss “criminal charges” (see 15A-1445(a)(1). Habitual felon status is not a substantive crime, so Judge Fullwood’s order didn’t dismiss a criminal charge — it vacated a sentence for a drug charge. Since the appeal did not satisfy the criteria of 15A-1445, it was not an appeal regularly taken. As a result, 15A-1422(b) also did not apply.

By the way, the COA considered whether 15A-1422 applied because the state had invoked 15A-1422(b) in its brief; the COA was replying to the state’s argument. One more thing: the Court of Appeals did not have the authority to assert its jurisdiction by invoking N.C. R. App. P. 2. Rule 2 cannot be used to expand the appellate courts’ jurisdiction. Bailey v. North Carolina Dep’t of Revenue, 353 N.C. 142, 157 (2000).