Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015).
Here’s what happened. At the close of his DWI trial in superior court, the defendant in Kiselev moved to dismiss the charges for insufficiency of the evidence. The trial court determined that it needed to review the transcript of the arresting officer’s testimony before ruling on the motion and so informed the parties. While waiting for the court reporter to prepare the transcript, the trial judge permitted the jury to begin deliberations. After the jury returned a verdict of guilty, the trial court reviewed the transcript, which had just been completed by the court reporter. The court then granted the defendant’s motion to dismiss, explaining that the transcript showed the State had not met its burden of proof as a matter of law. The State appealed that ruling to the court of appeals.
Double Jeopardy considerations. Double jeopardy prevents the State from appealing a court’s dismissal of charges on grounds of insufficient evidence if the dismissal occurs before the jury’s verdict. Were the State to prevail upon such an appeal, the order dismissing charges would be reversed, requiring that the defendant again be tried on the charges. Yet a second trial after the defendant’s acquittal—and the dismissal of charges based on insufficiency of the evidence is the functional equivalent of an acquittal—is barred by principles of double jeopardy. Burks v. United States, 437 U.S. 1, 11 (1978). Double jeopardy does not, however, bar the State from appealing an order dismissing charges for insufficiency of the evidence, when the dismissal is entered after a jury’s verdict of guilt. This is so because the defendant would not have to be retried if the State prevailed on appeal. Instead, the trial judge could simply reinstate the jury’s guilty verdict and sentence the defendant accordingly. See, e.g., State v. Scott, 356 N.C. 591, 598-99 (2002) (ordering trial court upon remand to sentence defendant for habitual DWI charge that trial court dismissed after the jury’s guilty verdict).
G.S. 15A-1227. A trial court may not, however, postpone ruling on a motion to dismiss for insufficient evidence that is made before the jury begins its deliberations so as to provide the State with an opportunity for appeal. Instead, G.S. 15A-1227(c) requires that a judge rule on a motion to dismiss for insufficiency of the evidence before the trial may proceed. This provision unquestionably was violated in Kiselev when the trial court permitted the jury to deliberate the defendant’s guilt while the trial transcript was prepared.
A violation of G.S. 15A-1227(c) is prejudicial error if the defendant can show that the trial court would have ruled in his favor had the court ruled at the proper time. The court of appeals determined that the defendant made that showing in Kiselev. The trial court stated that its ruling turned on what was in the transcript. Though the transcript had yet to be prepared, the testimony and trial proceedings to be transcribed were static and could not be changed by subsequent proceedings.
No right to appeal. The court of appeals thus held that the State’s appeal was barred. The court explained that no appeal would have been possible had the trial court dismissed the charges before the jury began its deliberations. Thus, the court reasoned, the appropriate remedy for the trial court’s violation of G.S. 15A-1227 was to return the parties to the position they would have occupied had the judge timely ruled. This required dismissal of the State’s appeal, with the result that the charges against Kiselev remained dismissed without the possibility of review.
Last word in DWI sentencing. A more common instance in which the trial court has the last say is in sentencing defendants for misdemeanor DWI. When the State believes the trial court has erred in sentencing under G.S. 20-179, it has little recourse. Violation of structured sentencing laws is a basis for appeal from superior court pursuant to G.S. 15A-1445(a)(3), but there is no corresponding provision that allows the State to appeal from a misdemeanor DWI sentence that it believes erroneously accounted for aggravating factors or contained an incorrect sentence disposition. The right of the State to appeal from a district court judgment is even more limited. See G.S. 15A-1432. While a trial judge herself has inherent authority to correct a legally impermissible sentence, there is no statutory authority for the State to seek review of that matter with the appellate courts.
That said, trial judges do not have carte blanche to ignore the sentencing provisions in G.S. 20-179. When the State confronts a circumstance in which a trial judge flouts the sentencing law altogether, it may seek a writ of prohibition from the appellate courts directing the judge to follow the law. See, e.g., In re Greene, 297 N.C. 305, 312 (1979) (directing named district court judge in adjudicating convictions for offenses sentenced pursuant to G.S. 20-179 to pronounce judgment in accordance with statute).