#### STATE OF NORTH CAROLINA v. THEODORE PRESTON VERBAL

No. 6919SC321

(Filed 23 July 1969)

«Criminal Law § 15S.S— failure to docket record on appeal on time

Where defendant was given the maximum time within which to docket his record on appeal, and the record on appeal was not docketed until almost three months beyond the maximum time allowed by Rule 5, the Gourt of Appeals dismissed the appeal ex mero motu. Court of Appeals Rule No. 5.

Appeal by defendant from Exum, J., 9 September 1968 Regular Criminal Session of Superior Court of Rowan.

Defendant was charged under a valid bill of indictment with illegal possession of amphetamine drugs for the purpose of sale. Defendant was represented by privately retained counsel and entered a plea of not guilty. At the close of the State’s evidence, he withdrew his plea of not guilty and tendered a plea of nolo contendere which was accepted by the State. Judgment was entered on 17 September 1968 imposing a prison term on defendant. On 26 September 1968, defendant, in open court, gave notice of appeal. The court was notified that defendant was being represented on appeal by different privately retained counsel and additional time was allowed for serving case on appeal. Time for docketing the record on appeal was, extended to 17 February 1969. The record on appeal was not docketed, however until 5 May 1969.

Attorney General Robert Morgan by Staff Attorney Richard N. League for the State.

Pearson, Malone, Johnson & DeJarmon by W. G. Pearson, II, and C. C. Malone, Jr., for defendant ayyellant.

Morris, J.

The record discloses that defendant was given by the trial tribunal the maximum time within which to docket his record on appeal. The record on appeal was not docketed until 5 May 1969, almost three months beyond the maximum time allowed by our rules. Rule 5, Rules of Practice in the Court of Appeals of North Carolina.

For failure to docket the record on appeal within the time ordered by the court, which was the maximum time allowed by our rules, the appeal is dismissed ex mero motu.

Dismissed.

Campbell and Broce, JJ., concur.