OFFICE OF THE
APPELLATE DEFENDER
STATE OF NORTH CAROLINA
SUITE 600
123 WEST MAIN STREET
DURHAM, NC 27701

MALCOLM RAY HUNTER, JR.

TELEPHONE:
(919) 960-3334
FACSIMILE
(919) 560-3288

November 18, 1999

The Honorable Peter M. McHugh

Resident Superior Court Judge

915 Country Club Drive
Reidsville, North Carolina 27320

Re: State v. Theodore Mead Kimble
97 CrS 39581; 98 CrS 23486, 23656; 99 CrS 23241-23248

Dear Judge McHugh:

Pursuant to Appellate Rules 11(c), I am enclosing a proposed Order Settling the Record on Appeal in the above cases. If you agree, please date, execute and return it to me in the enclosed, self-addressed, stamped envelope. I will see to it that it is filed in the Court of Appeals with the settled record and that a copy is served on Assistant District Attorney Richard Panosh.

Sincerely

/signature/
Danielle M. Carman
Assistant Appellate Defender
 

Enclosure
cc: Richard E. Panosh, Assistant District Attorney

     Theodore Mead Kimble

STATE OF NORTH CAROLINA

GUILFORD COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
97 CrS 39581; 98 CrS 23486, 23656;
99 CrS 23241-23248

STATE OF NORTH CAROLINA
v.
THEODORE MEAD KIMBLE

ORDER SETTLING RECORD ON APPEAL

This matter coining on before the undersigned pursuant to Rule 11(c) of the Rules of Appellate Procedure upon written request by Danielle M. Carman, Assistant Appellate Defender, to settle the record on appeal in the above-captioned cases.

On November 5, 1999, Assistant District Attorney Richard E. Panosh filed written objections to a portion of defendant's proposed record on appeal that moved to include in the record a statement concerning the conditions of defendant's confinement during the time period between entry of his guilty and Alford pleas, and his pro se motion to withdraw those pleas. On November 8, 1999, defendant requested that the record be settled by judicial order.

In accordance with Appellate Rule 11(c), this Court notified both parties setting a time and place for a hearing to settle the record on appeal. By stipulation, the parties agreed to conduct the hearing by telephone conference call on November 18, 1999.

This Court finds that the first sentence of defendant's proposed statement was before it at the time defendant moved to withdraw his pleas, and is a proper matter to be included in the record on appeal if the State stipulates to its inclusion. This Court further finds that Assistant District Attorney Panosh has stipulated to inclusion of that first sentence. However, this Court finds that the remainder of defendant's proposed statement is not of record and not a proper matter for inclusion in the record on appeal:
THEREFORE, it is ORDERED that the first sentence of defendant's proposed stipulation shall be included in the record on appeal, and defendant's motion to include that matter is HEREBY GRANTED. It is further ORDERED that the remainder of defendant's proposed statement is not to be included in the settled record on appeal, and defendant's motion to include this matter is HEREBY DENIED.

This the _____ day of November, 1999.

_____________________________
THE HONORABLE PETER M. McHUGH

SUPERIOR COURT JUDGE

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