State v. Joiner, 273 N.C. App. 611 (Oct. 6, 2020)

The defendant in this Forsyth County case was charged with two counts felony breaking or entering, two counts felony larceny after b/e, two counts felony larceny of property over $1000, and habitual breaking or entering, stemming from two break-ins and larcenies from Wake Forest University dormitory rooms. At trial, the jury convicted the defendant of the two felony breaking or entering offenses, two felony larceny after b/e offenses, one felony larceny for theft of property over $1000, and one misdemeanor larceny, along with habitual breaking and entering. Following his notice of appeal, the State filed a motion for appropriate relief (“MAR”) within ten days of the judgment, asking the trial court to arrest judgment on the felony larceny for theft of property over $1000 and the misdemeanor larceny as duplicative. The trial court granted that request and amended the judgment accordingly.

(1) The defendant argued that the trial court was divested of jurisdiction to amend the judgments in the case after he had given notice of appeal. This was incorrect. “The trial court retains jurisdiction until a notice of appeal is given and fourteen days have passed.” Slip op. at 5 (citation omitted). Further, once the State filed a timely 10-day MAR, the period of time for the defendant to give notice of appeal is extended 14 days under G.S. § 15A-1448(a)(2) from the date the trial court rules on the MAR. That statute provides that “when a proper motion for appropriate relief is made, the case shall remain open for the taking of an appeal until the court has ruled on the motion.” Id. (citing G.S. § 15A-1448). The trial court thus retained jurisdiction to amend the judgments.

(2) The defendant also argued that the trial court should have granted his motions to dismiss two of the larceny charges, pointing to the established rule that the taking of several items of property in the course of one act or event establishes only one larceny. Here, the defendant was improperly charged and convicted of multiple larcenies based on different items of property taken at one time. Because the trial court fixed the problem of duplicative larceny convictions with its MAR order, the issue was moot, and the argument dismissed.

(3) The trial court’s judgment incorrectly noted the defendant was a habitual felon, rather than one convicted of habitual breaking or entering. This was a clerical error, and the matter was remanded for correction of that error only. The convictions were otherwise affirmed.