#### STATE OF NORTH CAROLINA v. LEROY (BILL) BENNETT

No. 7120SC618

(Filed 15 December 1971)

Criminal Law § 155.5— failure to docket record in apt time

Appeal is dismissed for failure to docket the record on appeal within 90 days from the date of the judgment appealed from, no order having been entered by the trial court extending the time for docketing the record on appeal. Court of Appeals Rule 5.

Appeal by defendant from Long, Judge, at the Regular 12 April 1971 Criminal Session of Anson Superior Court.

By bill of indictment proper in form, defendant was charged with (1) felonious storebreaking, (2) felonious larceny, and (3) feloniously receiving stolen property. He pled not guilty, the jury found him guilty on counts (1) and (2) and from judgment imposing prison sentences, he appealed.

Attorney General Robert Morgan by James L. Blackburn, Assistant Attorney General, for the State.

Jones & Drake by Henry T. Drake for defendant appellant.

BRITT, Judge.

The record filed in this court discloses that the judgment appealed from was entered on 15 April 1971 and the record on appeal was docketed on 4 August 1971. The record discloses no order extending the time for docketing the appeal beyond the 90 days provided by Rule 5 of the Rules of Practice in the Court of Appeals. For failure to comply with the rules, the appeal, ex mero motu, is dismissed. State v. Isley, 8 N.C. App. 599, 174 S.E. 2d 623 (1970) ; State v. Stovall, 7 N.C. App. 73, 171 S.E. 2d 84 (1970); State v. Justice, 3 N.C. App. 363, 165 S.E. 2d 47 (1968).

Nevertheless, we have carefully reviewed the record, with particular reference to the assignments of error brought forward and argued in defendant’s brief, and find that defendant had a fair trial free from prejudicial error.

Appeal dismissed.

Judges Brock and Vaughn concur.