An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-1280

                                  Filed: 5 May 2015

Mecklenburg County, No. 11 CRS 218388

STATE OF NORTH CAROLINA

             v.

ROBERT MCPHAIL


      Appeal by defendant from judgment entered 4 September 2014 by Judge

Beecher R. Gray in Mecklenburg County Superior Court. Heard in the Court of

Appeals 17 April 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Babb,
      for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathryn
      L. VandenBerg, for defendant-appellant.


      TYSON, Judge.


                                     I. Background

      Robert McPhail (“Defendant”) was convicted in April 2013 of first degree

murder and conspiracy to commit robbery with a dangerous weapon. He received

consecutive prison sentences of life without parole and 38 to 55 months.

      On appeal, this Court found no error as to Defendant’s convictions, but found

the trial court’s restitution award to be unsupported by evidence. State v. McPhail,
                                  STATE V. MCPHAIL

                                   Opinion of the Court



2014 N.C. App. Lexis 903, **20-21 (N.C. Ct. App. Aug. 19, 2014) (“McPhail I”). In an

opinion filed 19 August 2014, we vacated the judgment entered upon Defendant’s first

degree murder conviction and remanded “for the entry of a new judgment containing

a properly calculated restitution award.” Id. at *21.

      On remand, the trial court found that Defendant owed restitution to the

murder victim’s wife in the amount of $113,140.52. The trial court entered a new

judgment for first degree murder on 4 September 2014, reflecting the restitution

award. Defendant gave notice of appeal in open court.

                                       II. Issues

      Defendant now argues that the trial court lacked jurisdiction to enter the

judgment on 4 September 2014, because this Court’s mandate in McPhail I did not

issue until “twenty days after the written opinion of the court ha[d] been filed with

the clerk[,]” – i.e., on 8 September 2014. N.C.R. App. P. 32(b).

                                     III. Analysis

      The State concedes that the trial court was without jurisdiction to proceed in

this cause on 4 September 2014. We agree.

      “An appeal removes a case from the trial court which is thereafter without

jurisdiction to proceed on the matter until the case is returned by mandate of the

appellate court.” Woodard v. Local Governmental Employees' Retirement Sys., 110

N.C. App. 83, 85, 428 S.E.2d 849, 850 (1993). Under Rule 32(b), this Court’s mandate



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                                 STATE V. MCPHAIL

                                 Opinion of the Court



in McPhail I issued on 8 September 2014, which was 20 days after the opinion filing

date of 19 August 2014. The trial court held the restitution hearing and entered its

new judgment on 4 September 2014, before its jurisdiction was restored.

                                   IV. Conclusion

      “When the record shows a lack of jurisdiction in the lower court, the

appropriate action on the part of the appellate court is to arrest judgment or vacate

any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d

708, 711 (1981). We vacate the judgment and remand for a new restitution hearing.

In light of our holding, we decline to address Defendant’s second argument

challenging the evidentiary support for the restitution award, which is moot.

      VACATED AND REMANDED.

      Judges BRYANT and DIETZ concur.

      Report per Rule 30(e).




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