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 [...]
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