{
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  "name": "IN THE MATTER OF: D.K.L.",
  "name_abbreviation": "In re D.K.L.",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges McGEE and JACKSON concur."
    ],
    "parties": [
      "IN THE MATTER OF: D.K.L."
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nBecause juvenile did not properly give notice of appeal pursuant to N.C. Gen. Stat. \u00a7 7B-2602, this Court lacks jurisdiction to review this appeal. Juvenile\u2019s appeal is dismissed.\nI. Factual and Procedural Background\nOn 2 July 2008, the State filed four separate petitions alleging that D.K.L. (juvenile) was a delinquent juvenile in that he had committed: two counts of misdemeanor wrongfully breaking or entering a building in violation of N.C. Gen. Stat. \u00a7 14-54(b); two counts of felonious breaking or entering a building with the intent to commit a felony or larceny in violation of N.C. Gen. Stat. \u00a7 14-54(a); and two counts of felonious larceny pursuant to felonious breaking and entering in violation of N.C. Gen. Stat. \u00a7 14-72(b)(2). On 10 September 2008, the juvenile court found that juvenile had committed all the alleged offenses and adjudicated juvenile delinquent.\nAt the 15 October 2008 dispositional hearing, the juvenile court did not enter a final order but only specified the conditions for juvenile\u2019s release from detention, including that he abide by his parents\u2019 rules, that he remain enrolled in school, and that he abide by a curfew from 8:00 p.m. to 6:00 a.m. The juvenile court did not address the issues of placement in a wilderness program, restitution, or probation. At the beginning of the hearing, juvenile\u2019s counsel informed the court that while he conceded the recommendations for disposition were reasonable, he objected to disposition, and juvenile intended to appeal from the adjudication of delinquency. At the conclusion of the dispositional hearing, juvenile gave notice of appeal in open court. Appellate entries were filed that same day.\nOn 26 November 2008, the juvenile court filed its disposition order, entering a Level 2 disposition requiring the juvenile to cooperate with placement in a wilderness program, to pay restitution, and placing him on probation.\nJuvenile appeals.\nII. Notice of Anneal\n\u201cIt is well established that \u2018[fjailure to give timely notice of appeal ... is jurisdictional, and an untimely attempt to appeal must be dismissed.\u2019 \u201d In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)).\nN.C. Gen. Stat. \u00a7 7B-2602 authorizes the appeal of any final order in a juvenile matter. The statute provides that notice of appeal must be entered either \u201cin open court at the time of the hearing or in writing within 10 days after entry of the order.\u201d N.C. Gen. Stat. \u00a7 7B-2602 (2007). Final orders shall include:\n(1) Any order finding absence of jurisdiction;\n(2) Any order which in effect determines the action and prevents\na judgment from which appeal might be taken;\n(3) Any order of disposition after an adjudication that a juvenile is delinquent or undisciplined; or\n(4) Any order modifying custodial rights.\nId. An adjudication of delinquency is not a final order. In re J.L.W., 136 N.C. App. 596, 602, 525 S.E.2d 500, 504 (2000) (quoting In re Taylor, 57 N.C. App. 213, 214, 290 S.E.2d 797, 797 (1982)) Thus, we examine juvenile\u2019s notice of appeal in open court at the conclusion of the disposition hearing on 15 October 2008.\nWhile N.C. Gen. Stat. \u00a7 7B-2602 permits oral notice of appeal at the hearing, the statute only provides for appellate review upon any \u201cfinal order.\u201d Thus, it \u201cappears that oral notice of appeal given at the time of the hearing must be from a final order.\u201d In re Hawkins, 120 N.C. App. 585, 587, 463 S.E.2d 268, 270 (1995). In Hawkins, respondent mother gave notice of appeal in open court at the conclusion of a hearing on a petition alleging abuse, neglect, and dependency of a minor child. Id. at 586-87, 463 S.E.2d at 269-70. At the time of the hearing, the trial court found \u201cthat there is evidence that the child is abused and neglected,\u201d but made no reference to the dependency allegation. Id. at 587, 463 S.E.2d at 270. This Court held that, because the trial court had not ruled on all matters raised in the petition, the trial court had not rendered a final order at the time of the hearing, thus respondent-mother\u2019s oral notice of appeal was premature. Id.\nIn the instant case, the juvenile court had not rendered a final order at the time of the dispositional hearing because it had not ruled on all recommendations for disposition and did not address all matters included in the written order. At the hearing, the juvenile court only issued an order setting the conditions for juvenile\u2019s release from detention. Juvenile\u2019s counsel asked, \u201cJudge, just so I can clarify, the payment of restitution, the placing him on probation, the referral to Eckerd Camp, obviously, those could not be imposed as conditions.\u201d The court responded, \u201cNot at this point.\u201d The juvenile court\u2019s written order, filed on 26 November 2008, ordered juvenile to be placed in a wilderness program, to pay restitution, and to be placed on probation. Juvenile filed no notice of appeal after the juvenile court\u2019s final written order.\nAccordingly, we conclude that juvenile\u2019s notice of appeal, given in open court prior to the entry of the juvenile court\u2019s final written order, was not a timely notice of appeal. Because we hold that the juvenile failed to give proper notice of appeal, we dismiss this appeal and do not review juvenile\u2019s arguments.\nDISMISSED.\nJudges McGEE and JACKSON concur.\n. At the time In re J.L.W. and In re Taylor were decided, the statute in effect was N.C. Gen. Stat. \u00a7 7B-666, which was repealed by 1998 N.C. Sess. Laws 202, \u00a7 5. The current statute, N.C. Gen. Stat. \u00a7 7B-2602, was added by 1998 N.C. Sess. Laws 202, \u00a7 6. The session laws took effect on 1 July 1999, and the wording of the two statutes are virtually identical.\n. At the time In re Hawkins was decided, N.C. Gen. Stat. \u00a7 7B-666 was still in effect.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Lucas & Ellis, PLLC, by Anna S. Lucas, for juvenile-appellant.",
      "Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: D.K.L.\nNo. COA09-357\n(Filed 8 December 2009)\nAppeal and Error\u2014 failure to give proper notice of appeal\u2014 notice in open court prior to entry of final written order\nThe Court of Appeals lacked jurisdiction to review a juvenile delinquency case because the juvenile\u2019s notice of appeal given in open court prior to the entry of the juvenile court\u2019s final written order was improper under N.C.G.S. \u00a7 7B-2602.\nAppeal by juvenile from order filed 26 November 2008 by Judge Peter Mack in Pamlico County District Court. Heard in the Court of Appeals 30 September 2009.\nLucas & Ellis, PLLC, by Anna S. Lucas, for juvenile-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State."
  },
  "file_name": "0443-01",
  "first_page_order": 471,
  "last_page_order": 473
}