#### STATE OF NORTH CAROLINA v. DANNY BARBEE

No. 7214SC81

(Filed 29 March 1972)

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

Appeal is subject to dismissal for failure to docket the record on appeal within the time allowed by Court of Appeals Rule 5.

Appeal by defendant from Hobgood, Judge, 24 May 1971 Session of Superior Court held in Durham County.

Defendant was tried upon one bill of indictment charging him with selling fourteen bags of heroin for $55.00 to S. H. Conant, a police officer of the City of Durham, and upon another bill of indictment charging him with the unlawful possession of fourteen bags of heroin.

The jury returned a verdict of guilty on each count. From judgment of imprisonment, the defendant appealed.

*174 Attorney General Morgan and Assistant Attorney General League for the State.

Kenenth B. Spaulding and Norman E. Williams for defendant appellant.

MALLARD, Chief Judge.

Defendant was tried in May 1971. The judgment is dated 26 May 1971. On 25 June 1971, the trial judge entered an order allowing defendant sixty days “from August 15, 1971” in which to docket the appeal. The appeal was not docketed in the Court of Appeals within the time allowed under the order of the trial judge or under Rule 5 of the Rules of Practice in the Court of Appeals1 but was docketed on 11 November 1971.

For failure to comply with the rules of this court, the appeal should be dismissed; but before doing so, we examined defendant’s assignments of error and are of the opinion that no prejudicial error is made to appear.

Appeal dismissed.

Judges Morris and Parker concur.