              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-668

                               Filed: 6 February 2018

Guilford County, Nos. 13 CRS 92516–17, 92519–20

STATE OF NORTH CAROLINA

             v.

CHRISTOPHER LEE SINGLETARY


      Appeal by defendant from judgments entered 23 May 2016 by Judge Richard

S. Gottlieb in Guilford County Superior Court. Heard in the Court of Appeals 12

December 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General John F. Oates,
      Jr., for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F.
      Carella, for defendant.


      DIETZ, Judge.


      Defendant Christopher Lee Singletary appeals his sentences following

multiple convictions for sex offense charges. He contends that, after this Court filed

an opinion vacating his original sentence and remanding for resentencing, the trial

court improperly resentenced him before this Court issued the mandate.

      As explained below, we reject Singletary’s argument that the mandate had not

issued at the time of resentencing. We hold that the mandate from the appellate
                                STATE V. SINGLETARY

                                  Opinion of the Court



division issues on the day that the appellate court transmits the mandate to the lower

court, not the day when lower court actually receives it.

      Applying that holding here, the trial court had jurisdiction to resentence

Singletary on 23 May 2016. This Court filed its opinion vacating Singletary’s sentence

and remanding for resentencing on 3 May 2016. Twenty days later, on 23 May 2016,

this Court issued the mandate by transmitting it to the clerk of superior court.

Because the mandate issued on 23 May 2016, the trial court had jurisdiction to

resentence Singletary that same day. Accordingly, we reject Singletary’s

jurisdictional argument and affirm the trial court’s judgments.

                          Facts and Procedural History

      In 2015, Defendant Christopher Lee Singletary was convicted of multiple sex

offenses involving a minor. On appeal, this Court vacated Singletary’s sentence and

remanded the case for a new sentencing hearing. State v. Singletary, __ N.C. App. __,

786 S.E.2d 712 (2016).

      This Court filed its opinion on 3 May 2016 and the mandate issued on 23 May

2016, twenty days later. The Guilford County Clerk of Superior Court received this

Court’s judgment and mandate, and filed it, on 25 May 2016.

      On 23 May 2016—the same day this Court issued the mandate and two days

before the clerk of superior court received the written copy of the Court’s judgment

and mandate—the trial court resentenced Singletary. Singletary timely appealed.



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                                 STATE V. SINGLETARY

                                   Opinion of the Court



                                       Analysis

      Singletary contends that the trial court lacked jurisdiction to resentence him

because the court had not yet received the certified copies of the judgment and

mandate transmitted by this Court. As explained below, we reject this argument.

      In general, an appeal from a trial court judgment “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. N.C. Local

Governmental Emp. Ret. Sys., 110 N.C. App. 83, 85, 428 S.E.2d 849, 850 (1993)

(emphasis added). As a result, when this Court issues an opinion instructing a lower

court to take further action, the lower court should not take that action until this

Court issues its mandate. By issuing the mandate and accompanying judgment, this

Court returns jurisdiction to the trial court, which may then proceed with the case in

a manner consistent with this Court’s ruling. See N.C. Gen. Stat. § 15A-1452.

      Rule 32 of the Rules of Appellate Procedure describes when and how this Court

issues its mandate. The rule provides that a mandate “is issued by its transmittal

from the clerk of the issuing court to the clerk or comparable officer of the tribunal

from which appeal was taken to the issuing court.” N.C. R. App. P. 32(a). The rule

further states that this Court “shall enter judgment and issue the mandate of the

court twenty days after the written opinion of the court has been filed with the clerk.”

N.C. R. App. P. 32(b).



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                                        STATE V. SINGLETARY

                                          Opinion of the Court



        Singletary argues that, under Rule 32(a), the trial court could not resentence

him until 25 May 2016, the date on which the clerk of superior court received the

mandate, not 23 May 2016, the day this Court transmitted the mandate. We disagree.

Rule 32(a) states that the mandate “is issued by its transmittal” from this Court to

the lower court. Rule 32(b) then states that this Court “shall enter judgment and

issue the mandate . . . twenty days after the written opinion of the court has been

filed.” Read together, these rules indicate the mandate “issues” on the day this Court

transmits it to the lower court, not on the day the lower court receives it.

        Here, the Court issued its mandate on 23 May 2016. The trial court

resentenced Singletary that same day. Accordingly, we reject Singletary’s argument

that the trial court lacked jurisdiction to resentence him because the mandate had

not yet issued.1

                                             Conclusion

        For the reasons discussed above, we affirm the trial court’s judgments.

        AFFIRMED.

        Judges BRYANT and DILLON concur.




        1  Singletary also argues that, as the result of a clerical error, the judgments for some of his
offenses do not reflect the appropriate jail credit. In response, the State filed a supplement to the
record indicating that Singletary already has served his sentence for those offenses and that he did,
in fact, receive the appropriate jail credit, despite the clerical error in the judgment. Accordingly, this
issue is moot. State v. Black, 197 N.C. App. 373, 375, 677 S.E.2d 199, 201 (2009).

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