401.1Defendant's Right to Appeal

Last Updated: 04/29/21

Key Concepts

  • Misdemeanor convictions in district court can be appealed for trial de novo in superior court. Final convictions in superior court (and adjudications in juvenile court) are appealed to the North Carolina Court of Appeals (or, rarely, to the North Carolina Supreme Court).
  • A defendant’s ability to appeal from a guilty or no contest plea is much more limited than the right to appeal from a conviction at trial.
  • Notice of appeal in district court stays all portions of the judgment. Notice of appeal in superior court stays some portions of the judgment, but the defendant may still be ordered to begin serving an active sentence or be placed on post-conviction release conditions.
  • Appeals to superior court for trial de novo are prosecuted like any other pending case. Appeals to the Court of Appeals are primarily handled by the Attorney General’s Office, but the trial prosecutor will likely be called upon to help settle the record on appeal.

 Appellate Jurisdiction Overview

The original jurisdiction of the district and superiors courts to hear criminal cases is described in the Pretrial entry on Jurisdiction. The appellate jurisdiction of the various courts to review matters arising in lower courts are summarized here.

  1. Superior Court
    When a misdemeanor conviction is appealed from district court for trial de novo, the superior court may conduct a new trial on the convicted offense or any lesser-included offense, or the court may accept a guilty plea to the convicted offense, a lesser-included offense, or a related charge. See G.S. 7A-271(b). The defendant must give notice of appeal in district court either orally in open court, or in writing within 10 days. See G.S. 7A-290; G.S. 15A-1431(c). If the conviction in district court resulted from a plea agreement in which any charges were reduced, dismissed, or modified, the superior court has jurisdiction to try those charges “in the form and to the extent that they subsisted in district court” immediately before the entry of the plea agreement (i.e., the originally charged offenses, rather than just the offenses of conviction under the plea). G.S. 7A-271(b)G.S. 15A-1431(b).
    As of December 1, 2013, there is no longer a statutory right to appeal infractions from district court for trial de novo in superior court. See G.S. 15A-1115(a). Infractions disposed of in superior court (e.g., conviction of a speeding or reckless driving infraction that accompanied a felony death by motor vehicle offense) are subject to appeal in the same manner as any other criminal offense. See G.S. 15A-1115(b).
  2. North Carolina Court of Appeals
    The Court of Appeals has jurisdiction to review the “decisions of the several courts of the General Court of Justice,” along with the decisions of various administrative agencies, “upon matters of law or legal inference” in accordance with the statutes. See G.S. 7A-26. In criminal cases, appeal “lies of right directly to the Court of Appeals” from any “final judgment” in superior court (other than a guilty or no contest plea – see below), or from any other superior court order or judgment for which an appeal is authorized by statute. See G.S. 7A-27(b). Notice of appeal must be given orally in open court, or within 14 days of entry of the judgment, and notice must be served on the state. See North Carolina Rules of Appellate Procedure, Rule 4(a); G.S. 15A-1448(b).
Practice Pointer

No interlocutory appeals
Appeals from interlocutory orders (such as the court’s ruling on a motion to suppress evidence) are generally not allowed, since these do not constitute a “final judgment” in the case. See G.S. 7A-27; G.S. 15A-1444. There are isolated exceptions which allow for appealing a superior court’s reversal of a district court’s dismissal of charges, see G.S. 15A-1432(d), and a discretionary writ of cert seeking review of an interlocutory order, see G.S. 15A-1444(g), but these will rarely arise in practice.

Finally, the Court of Appeals has authority to exercise jurisdiction on matters such as writs of habeas corpus and writs of certiorari, or to exercise supervision and control over the trial courts as needed in aid of the Court of Appeals own jurisdiction. See G.S. 7A-32(a), (c); see also North Carolina Rules of Appellate Procedure, Rule 4 (“Appeal in Criminal Cases – When and How Taken”).

  1. North Carolina Supreme Court
    The state Supreme Court likewise has general jurisdiction to review the “decisions of the several courts of the General Court of Justice” and administrative agencies “upon matters of law or legal inference” pursuant to G.S. 7A-26. Most cases reach the Supreme Court by way of an appeal from the Court of Appeals, and are based on the grounds that there was (i) a dissent in the Court of Appeals, or (ii) the case directly involves a substantial question arising under the state or federal Constitution. See G.S. 7A-30. The Supreme Court can grant a “discretionary review” to take up other cases at any time. See G.S. 7A-31. The defendant may move for discretionary review of a case by the Supreme Court either before or after it has been decided by the Court of Appeals. G.S. 7A-31(a). The state may petition the Supreme Court for discretionary review of a case only after the case has been heard by the Court of Appeals. G.S. 7A-31(a).
    There is an exception for any murder case where the death penalty is imposed, in which case the appeal goes directly to the Supreme Court. See G.S. 7A-27(a). The Supreme Court also has authority to exercise jurisdiction on matters such as writs of habeas corpus and writs of certiorari, or to exercise supervision and control over the trial courts as needed in aid of the Court’s own jurisdiction “or in exercise of its general power to supervise and control the proceedings of any of the other courts[.]” See G.S. 7A-32(a) and (b).
    Finally, G.S. 7A-28(a) expressly provides that there is no Supreme Court review for Motions for Appropriate Relief; however, the North Carolina Supreme Court has previously held in a similar context that statutes cannot restrict its ability “to exercise jurisdiction to review upon appeal any decision of the courts below,” so presumably it could choose to apply Rule 21(e) of the Appellate Rules and consider a petition for writ of certiorari on an MAR despite the statutory prohibition. See State v. Ellis, 361 N.C. 200 (2007).

Defendant’s Right to Appeal

In general, a defendant may seek appellate review of his or her case if appellate jurisdiction exists as described above, and in accordance with the procedural requirements outlined in the final section below. If the defendant is appealing to superior court from a conviction in district court, then the case will be placed on the superior court calendar for trial de novo on the charged offense. If the defendant is appealing from a conviction in superior court, it is still a fairly straightforward process in which the defendant is convicted at trial and sentenced (i.e., receives a “final judgment”), gives notice of appeal, and then the defendant and the state (represented by the Attorney General’s Office) argue any properly preserved legal errors in the case to the Court of Appeals.
But in some situations, the defendant’s ability to appeal (or the scope of what can be argued on appeal) may be slightly different, depending on how the case was disposed of.

  1. Right to Appeal for Trial De Novo in Superior Court After a Plea Bargain in District Court
    The defendant usually has the right to appeal for trial de novo in superior court after a misdemeanor conviction in district court, but if that conviction resulted from a plea arrangement in which the original charges against defendant were dismissed, reduced, or modified, then all of the original charges are reinstated for prosecution in superior court. G.S. 7A-271(b) and 15A-1431(b). The prosecutor should mark the original charges as “reinstated for trial” (or send the charges to grand jury for indictment, if needed), place the charges on the superior court calendar, and inform the court of the legal grounds for doing so.
    If a felony charge was reduced to a misdemeanor in district court as part a plea bargain, and then the defendant appealed that misdemeanor conviction to superior court for trial de novo, the state may indict and try the defendant for the original felony charge. See State v. Fox, 34 N.C. App. 576 (1977).
  2. Appeal to Superior Court from Probation Violation/Revocation in District Court
    A defendant found to be in violation of probation and revoked in district court may appeal to the superior court for a de novo revocation hearing. See G.S. 15A-1347(a). There is no right to appeal if the defendant “waives” the entire hearing (as opposed to simply “admitting” the violation at a hearing), or if the defendant only receives a lesser sanction such as house arrest (it is not yet clear whether this limitation on the right to appeal also applies to CRVs). See State v. Romero, 228 N.C. App. 348 (2013). Note that the superior court has exclusive jurisdiction to conduct Class H and I felony probation proceedings, even if those judgments were actually entered in district court – unless both the state and the defendant agree to hold the hearing in district court. See G.S. 7A-271(e). If the defendant’s probation is revoked in superior court, any resulting appeal from that hearing is to the Court of Appeals. For more information, see the related entry on Sentencing: Probation.
  3. Defendant’s Right to Appeal from Juvenile Court
    Even though juvenile proceedings take place in district court, a juvenile has a right to appeal a final adjudication of delinquency to the Court of Appeals. G.S. 7B-2602. A juvenile also has the right to appeal to superior court from a district court order transferring the case for trial as an adult in superior court, but the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court. G.S. 7B-2603. For more information, see the related Juvenile entry on Appeals
  4. Right to Appeal to Court of Appeals after Plea of Guilty, No Contest, or Admission of Responsibility
    As a general rule, the defendant does not have a statutory right to appeal in criminal cases where he or she has entered a plea of guilty, no contest, or admission of responsibility. See State v. Rinehart, 195 N.C. App. 774 (2009); State v. Jeffrey, 167 N.C. App. 575 (2004); State v. Bivens, 155 N.C. App. 645 (2002); State v. Pimental, 153 N.C. App. 69 (2002).
    There are a few limited exceptions to this rule which do allow the defendant to appeal certain issues, even after a guilty plea, as follows:
    1. Appeal of Sentence
      See G.S. 15A-1442, 15A-1444. Even when the defendant has entered a plea of guilty or no contest to a criminal charge in the superior court (or in district court, if a Class H or I felony plea is entered in that court), the defendant is still entitled to an appeal of right after entry of the plea under the following circumstances:
      1. The defendant may appeal the issue whether his or her sentence is supported by the evidence if the minimum sentence of imprisonment falls outside the presumptive range for the defendant’s prior record or conviction level and class of offense.
      2. The defendant may also appeal the issue of whether the sentence imposed:
        1. resulted from an incorrect finding of the defendant’s prior convictions or prior record level;
        2. contained a type of sentence that was not authorized for the defendant’s class of offense and prior record or conviction level; or
        3. contained a term of imprisonment that was for a duration not authorized for the defendant’s class of offense and prior record or conviction level.
    2. Appeal of Denial of Motion to Withdraw Guilty or No Contest Plea
      A defendant has a right to appeal when a motion to withdraw a plea of guilty or no contest has been denied. G.S. 15A-1444(e); State v. Handy, 326 N.C. 532 (1990).
    3. Appeal of Denial of Motion to Suppress Evidence
      A defendant may retain the right to appeal the denial of a motion to suppress evidence even after the entry of a guilty plea. G.S. 15A-979(b). However, to preserve this right of appeal, a defendant must have given notice to the prosecutor and the judge of his or her intent to appeal the ruling before the plea negotiations and entry of the plea were completed. See State v. Tew, 326 N.C. 732 (1990); State v. Killette, __ N.C. App. __, 834 S.E.2d 696 (2019); State v. Pimental, 153 N.C. App. 69, disc. review denied, 356 N.C. 442 (2002); State v. Reynolds, 298 N.C. 380 (1979).
  5. No Right to Appeal a Prayer for Judgment Continued
    When a prayer for judgment continued is entered, the defendant has no right to appeal (1) from district court to superior court for trial de novo, or (2) from superior court to the appellate division. State v. Perry, 316 N.C. 87 (1986). For more information, see the related entry on Prayer for Judgment Continued.

Custody and Judgment Pending Appeal

1. Appeal from District Court

When the defendant appeals from district court to superior court for trial de novo, the appeal automatically stays all portions of the district court’s judgment, including fines, costs, probation, and active punishment. See G.S. 15A-1431(f1). But any pretrial release conditions which were previously imposed on the defendant remain in effect. See G.S. 7A-290; G.S. 15A-1431(e). Even after the defendant has given notice of appeal, the district court judge is authorized to modify or add to those release conditions (including confinement in local detention facility) pending trial de novo in superior court. See G.S. 15A-1431(f1).

Practice Pointer

New conditions after notice of appeal?
If the district court judge sets new release conditions after notice of appeal, defense counsel will likely point to G.S. 15A-534(e)(1) to argue that the district court judge is no longer authorized to modify pre-trial release conditions after the defendant has given notice of appeal to superior court.
Prosecutors should argue that this is incorrect. G.S. 15A-1431(f1), an amendment added in 2005, states that the notice of appeal stays execution of all aspects of the judgment in district court, “however, the judge may order any appropriate condition of pretrial release, including confinement in a local confinement facility, pending trial de novo in superior court.”
For further discussion (and a contrary view) on this issue, see “I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo,” Alyson Grine, North Carolina Criminal Law Blog, February 2010 (Part 1 and Part II).

2. Appeal from Superior Court

When the defendant enters a notice of appeal from superior court to the court of appeals, it puts an automatic stay on some aspects of the judgement, including fines, costs, and the commencement of any periods of probation. See G.S. 15A-1431(d); 15A-1451(a)(1) and (2); 15A-1451(a)(4); 15A-1448(a)(6);  North Carolina Rules of Appellate Procedure, Rule 8(b). But the notice of appeal does not preclude the court from executing the sentence of imprisonment. See G.S. 15A-1431(f1); 15A-1451(a)(3) and (4); 15A-536; North Carolina Rules Of Appellate Procedure, Rule 8(b) (Stay Pending Appeal), Rule 23 (Supersedeas); State v. Smith, 359 N.C. 618 (2005).
Alternatively, the court has the discretion to release a defendant on post-conviction release conditions (similar to pre-trial release conditions) while the appeal is pending. See G.S. 15A-536(b); 15A-1451. If a defendant is going to be released pending an appeal, new conditions of release and a new bond will need to be executed because the defendant’s pretrial appearance bond is ineffective after entry of judgment in the case. See G.S. 15A-534(h); G.S. 15A-536; G.S. 15A-1353; see also AOC-CR-238 (Appearance Bond for Release After Judgment in Superior Court). When an appeal is pending in the appellate division, the court in which the defendant was convicted has the continuing authority to act concerning the defendant’s release conditions under Article 26 of Chapter 15A. See G.S. 15A-1448(a)(3) and G.S. 15A-1453.

Prosecutor’s Role After Defendant Appeals

When a defendant appeals from district court to superior court, the case will be calendared for trial de novo in superior court. The process for designating a particular prosecutor and court session to try the case will vary depending on the size of the district and the policies of each different office, but in most respects the case will be treated the same as any other case that is brought into superior court.
When the defendant appeals from juvenile or superior court to the Court of Appeals, all of the briefs and arguments on appeal will be handled by the North Carolina Attorney General’s Office. The prosecutor is responsible for arguing for imposition of the term of imprisonment (or post-conviction release conditions, if appropriate) while the appeal is pending, but otherwise the prosecutor usually will not have a large role in the appeal.
However, one important task which frequently does involve the trial prosecutor is settling the record on appeal pursuant to North Carolina Rules of Appellate Procedure, Rule 11. Within 35 days of receiving the transcript of the trial (or within 35 days of the notice of appeal, if no transcript was ordered, or 70 days in a capital case), the parties may settle the record on appeal by agreement. In most cases, counsel for the defendant/appellant will send a “proposed record” to the prosecutor which contains the indictment, pretrial motions, court orders, transcript, judgment, and any other record documents necessary for appellate review. After receiving the proposed record, the prosecutor has 30 days (35 days in capital cases) to either sign and return an approval form indicating that the state agrees with the proposed record, or else provide a notice of objections, amendments or an alternative proposed record. If the prosecutor does neither, the record is settled by default and becomes the official record on appeal.

Practice Pointer

Attorney General contact info
If a prosecutor receives a proposed record on appeal for one of his or her cases that has been appealed and has questions about how to proceed, or if the prosecutor believes that there are errors/omissions in the proposed record which need to be addressed, he or she should promptly get in touch with the assigned appellate attorney at the Attorney General’s Office to discuss the case. General contact information for that office can be found here.

For quick reference, some of the key rules, procedures, and deadlines for criminal appeals to the Court of Appeals are summarized below.

Timetables for Appeals

See Annotated North Carolina Rules of Appellate Procedure, Appendix A.

Summary of Contents of Record on Appeal

See North Carolina Rules of Appellate Procedure, Rule 9 and Appendix C, Table 3.

Authorized Actions by Trial Court While Appeal Is Pending

See G.S. 15A-1453.

Notice of Appeal (How and When Taken)

For appeals from district court, see G.S. 7A-290 and G.S. 15A-1432(b).

 

For appeal of juvenile cases, see G.S. 7B-2602 through 7B-2604.

 

For appeals from superior court, see North Carolina Rules of Appellate Procedure, Rule 4 (allowing 14 days for giving notice of appeal), G.S. 15A-1448(a) and (b), and AOC-CR-350.

 

For filing, service, and content requirements for written notice of a state’s appeal from superior court, see  North Carolina Rules of Appellate Procedure, Rule 4; Rule 26; Rule 27; and Appendix D.

 

If a motion for appropriate relief is filed with the trial judge during the ten-day appeal period after entry of judgment, the period for taking an appeal is tolled until ten days after the trial judge has ruled on the motion. G.S. 15A-1448(a)(2).

Scope of Review on Appeal Is Limited

1. Review by Appellate Division Limited to Errors of Law: see G.S. 15A-1441 to 1443 for discussion of grounds for correction of errors by the Court of Appeals or Supreme Court.

 

2. Objections and Exceptions to Errors at Trial Generally Required as Prerequisite for Appeal: see G.S. 15A-1446 and North Carolina Rules of Appellate Procedure, Rule 10.

Filing Record and Docketing Appeal

See North Carolina Rules Of Appellate Procedure, Rule 12, Rule 26, and Appendix B.

Filing and Service of Briefs

See North Carolina Rules Of Appellate Procedure, Rule 13, Rule 28, and Appendix B.

Relief Available on Appeal and Consequences of Appellate Determination

See G.S. 15A-1447 and 15A-1452.

Review by Extraordinary Writs [G.S. 7A-32]

For writ of certiorari, see North Carolina Rules of Appellate Procedure, Rule 21 and Appendix D-4, and G.S. 15A-1448(c).

 

For writ of mandamus or prohibition, see North Carolina Rules of Appellate Procedure, Rule 22.

 

For writ of supersedeas, see North Carolina Rules of Appellate Procedure, Rule 23 and Appendix D-5.

 

 

 

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume II, Chapter 35.