Volume 110 — North Carolina Court of Appeals Reports

1. Appeal and Error 233 (NCI4th) — criminal action — appeal by State from district to superior court — notice of appeal insufficient — reliance on defense counsel The State's notice of appeal from district to superior court was inadequate where defendant was charged with misdemeanor death by vehicle and with driving left of the center; defendant pled responsible for the driving left of center infraction and filed a motion to dismiss the misdemeanor death by vehicle charge on double jeopardy grounds; the district court granted the motion; the State gave notice of appeal in open court; the defendant offered to draft the notice of appeal on behalf<page_number>Page 61</page_number> of the State, including it with the order dismissing the criminal charges; no separate written notice of appeal was filed by the State; the State filed in superior court a petition for writ of certiorari; and the superior court issued the writ and subsequently reinstated the misdemeanor death by vehicle charge. The notice of appeal was inadequate to meet the requirements of N.C.G.S. <cross_reference>15A-1432</cross_reference>(b) because the basis for the appeal was not specified; the State had the responsibility to file the notice of appeal in the proper manner and reliance on defendant's counsel to prepare proper notice will not suffice. Am Jur 2d, Appeal and Error 290 et seq. 2. Appeal and Error 294 (NCI4th) — criminal action — appeal by State from district to superior court — writ of certiorari Although no statute explicitly gives the superior court authority to issue a writ of certiorari to preserve a party's right to an appeal, N.C.G.S. <cross_reference>15A-1432</cross_reference> gives the State the right to appeal a district court order dismissing a charge, N.C.G.S. <cross_reference>15A-101</cross_reference>(0.1) provides that the term "appeal" also includes appellate review upon writ of certiorari, and Rule 19 of the General Rules of Practice gives the superior court the authority to grant the writ of certiorari in proper cases. Am Jur 2d, Certiorari 15 et seq. 3. Constitutional Law 186 (NCI4th) — driving left of center — misdemeanor death by vehicle — no double jeopardy The superior court properly reinstated the charge of misdemeanor death by vehicle where defendant had been charged with misdemeanor death by vehicle and the infraction of driving left of center; defendant pled responsible to driving left of center; and the district court dismissed misdemeanor death by vehicle as double jeopardy under the Fifth Amendment to the U.S. Constitution. Although a violation of N.C.G.S. <cross_reference>20-146</cross_reference> for driving left of center is considered an infraction, it constitutes an offense within the double jeopardy clause; however, both the law and common sense dictate that a defendant cannot choose to plead responsible to the minor infraction and thereby evade prosecution for the more serious criminal offense. The judgment concerning the lesser offense must be vacated if defendant is convicted of the death by motor vehicle charge. Am Jur 2d, Criminal Law 279 et seq.<page_number>Page 62</page_number>

1. Schools 13.2 (NCI3d) — teacher dismissal — attorneys for superintendent and board in same firm — no due process violation A school teacher was not denied due process in a dismissal hearing before the school board because the superintendent's attorney who presented the case against her was a member of the same firm as the attorney who advised the board at the hearing. The school board is presumed to have acted correctly, and no due process violation will be found absent a showing of actual bias or unfair prejudice. Am Jur 2d, Schools 147 et seq. <block_quote> Insubordination as ground for dismissal of public school teacher. 78 ALR3d 83.</block_quote><page_number>Page 600</page_number> 2. Schools 13.2 (NCI3d) — teacher dismissal — document used to refresh recollection — notice statute not violated Even though a teacher received a copy of a document showing standardized writing test results only moments before her dismissal hearing, there was no violation of the notice requirement of N.C.G.S. <cross_reference>115C-325</cross_reference>(j)(5) where the document was used only to refresh a school principal's recollection of the test results and was never presented into evidence. Am Jur 2d, Schools 147 et seq. <block_quote> Insubordination as ground for dismissal of public school teacher. 78 ALR3d 83.</block_quote> 3. Schools 13.2 (NCI3d) — dismissal of teacher for insubordination — sufficiency of evidence The evidence supported a school board's dismissal of a seventh grade social studies teacher for insubordination where it tended to show that parents of the teacher's students complained early in the school year about her classroom behavior; the principal told the teacher to cease a doll-making project in her class because it had no educational value; the principal discovered that students were still making dolls in the teacher's class several weeks later; the teacher was eventually placed on conditional status, which required her to work with the principal to develop a professional development plan; the teacher ignored several invitations to meet with the principal and never participated in developing a plan; the principal finally developed a plan without the teacher's input and instructed the teacher to implement it; the teacher told the area superintendent that she did not agree with the principal's evaluation of her performance and saw no need to implement the plan; and although the superintendent told the teacher that failure to implement the plan was insubordination and that by not implementing the plan she was placing her job in jeopardy, the teacher still failed to implement the plan. Am Jur 2d, Schools 147 et seq. <block_quote> Insubordination as ground for dismissal of public school teacher. 78 ALR3d 83.</block_quote><page_number>Page 601</page_number>