State v. Cole, ___ N.C. App. ___, 822 S.E.2d 456 (Nov. 20, 2018)

In this DWI case, the superior court properly denied the defendant’s motion to dismiss the indictment for lack of jurisdiction. The defendant asserted that because the State failed to dismiss the citation charging the offense in district court, that charge remained valid and pending in district court, depriving the superior court of jurisdiction. The court concluded that because the charge in superior court was initiated by presentment, that court acquired jurisdiction over the offense when the indictment was issued. The court rejected the defendant’s argument that because the State never dismissed the citation in district court, that charge remained pending and active requiring the superior court to dismiss the indictment. Although the State never filed a formal dismissal of the citation in district court, it abandoned that prosecution in favor of the superior court prosecution, “which effectively served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending.” The court further rejected the defendant’s argument that the two courts had concurrent jurisdiction and that as the first court exercising jurisdiction, the district court had jurisdiction to the exclusion of the superior court. The court found no evidence of the district court’s exercise jurisdiction over the offense after the existence of concurrent jurisdiction with the superior court.