402.1State's Right to Appeal
- The state has a statutory right to appeal from district court to the superior court on an order dismissing a charge or granting a new trial, or granting a motion to suppress in DWI cases.
- The state may appeal from the superior court to the appellate courts only in limited circumstances such as when a charge is dismissed, a new trial is granted, evidence is suppressed, or an erroneous sentence is imposed.
- The state does not have a statutory right to appeal most other court orders, but the state can ask the superior court or appellate courts to review an issue through a writ of certiorari.
State’s Appeal from District Court - Generally
The state’s ability to appeal to superior court from an adverse result in district court is much more limited than the defendant’s ability to appeal for trial de novo in all misdemeanor cases. G.S. 15A-1432 provides that the state may appeal to superior court only when the district court has:
- Dismissed a charge; or
- Granted a defendant’s motion for a new trial on the ground of newly-discovered or newly-available evidence, but this appeal is only on questions of law.
See State v. Huntley, 105 N.C. App. 709 (1992). The state’s appeal must be made by written motion within ten days of the entry of the district court’s judgment. But see State v. Ward, 127 N.C. App. 115 (1997) (state’s written notice of appeal was sufficient to give notice to defendant, even though it was not in the form of a motion as required by statute). The motion must be filed with the clerk and a copy served on the defendant. G.S. 15A-1432.
When the state appeals to superior court, the superior court judge must hold a hearing and conduct a de novo review of the district court’s ruling. State v. Ward, 127 N.C. App. 115 (1997). If the superior court finds that the judgment, ruling, or dismissal in district court was in error, the superior court must reinstate the charges and remand the case to district court for further proceedings (and the defendant may appeal from this order to the Court of Appeals). See G.S. 15A-1432(d). If the superior court finds that the district court was not in error, it must enter an order affirming the district court order. See G.S. 15A-1432(a), (e).
The state may appeal the superior court's order affirming the district court's order for dismissal or new trial to the Court of Appeals. See G.S. 15A-1432(a), (e). To initiate such an appeal, the district attorney must certify to the superior court judge that the appeal is not taken for the purpose of delay. G.S. 15A-1432(e); 7A-27(e); State v. Turner, 305 N.C. 356 (1982) (prosecutor’s certificate is timely if filed before certification of record on appeal to appellate division—although the issue arose in a different context, the ruling would likely be the same under G.S. 15A-1432(e)).
G.S. 15A-1432 does not give the state the right to appeal a district court judge’s granting of a defendant’s motion to suppress (except for DWI cases, discussed below), even if the motion to suppress was heard before trial in district court and the suppression of the evidence now makes prosecution of the case impossible. The state’s only available remedy in such a situation is to seek review by filing a writ of certiorari, discussed in the final section below.
State’s Appeal from District Court - DWI cases
In DWI cases in district court, the defendant must file a motion to suppress evidence or dismiss the charges prior to trial, rather than during trial as is the case for most other misdemeanor offenses. See G.S. 20-38.6(a). The motion to suppress may be summarily granted if the state stipulates that none of the challenged evidence will be used, or it may be summarily denied if the defendant failed to make the motion pretrial when all material facts were known to the defendant. See G.S. 20-38.6(c), (d).
If the motion is neither summarily granted nor summarily denied, then the district court must conduct a hearing and make findings of fact. See G.S. 20-38.6(e). After the hearing, if the district court judge determines that the defendant’s motion should be granted, the state has a right to appeal the district court judge’s “preliminary indication” in favor of suppression (which should include written findings of fact and conclusions of law) and have the matter reviewed by a superior court judge. See G.S. 20-38.6(f). If there is no dispute as to the facts, the superior court judge will only review the ruling for errors of law; if there is a dispute as to the facts, then the superior court judge will conduct a de novo review. See G.S. 20-38.7(a). After conducting a review, the superior court judge will enter an order remanding the case back to district court with instructions to the district court judge to enter an order either granting or denying the motion. See State v. Fowler, 197 N.C. App. 1 (2009); State v. Hutton, 244 N.C. App. 128 (2015).
Notwithstanding the requirement that suppression motions be made in advance and the review procedure just described, the defendant in a DWI case is still permitted to make a standard motion to dismiss for insufficient evidence at the close of the state’s case. See G.S. 20-38.6(a), (b). If the district court grants that motion, the court’s ruling is not subject to review or appeal because double jeopardy would bar another trial anyway. See State v. Harrell, 279 N.C. 464 (1971). For more information, see the related entry on Double Jeopardy – Retrial and Appeal.
State’s Appeal from Juvenile Court
A state’s right to appeal to the Court of Appeals is very limited in delinquency or undisciplined cases. Under G.S. 7B-2604(b), the state’s appeal is limited to the following orders:
- An order finding a state statute to be unconstitutional; or
- Any order that “terminates the prosecution of a petition” by:
- Upholding the defense of double jeopardy,
- Ruling that a cause of action is not stated under a statute, or
- Granting a motion to suppress.
For more information, see the related Juvenile entry on Appeals.
State’s Appeal from Superior Court to Appellate Courts
The state’s main statutory right to appeal in superior court is found in G.S. 15A-1445, which provides that unless the rule against double jeopardy prohibits further prosecution, see State v. Priddy, 115 N.C. App. 547 (1994); State v. Shedd, 117 N.C. App. 122 (1994); State v. Vestal, 131 N.C. App. 756 (1998), the state has a right to appeal from the superior court to the Court of Appeals (or, for a first-degree capital murder case, to the state Supreme Court) only when:
- A criminal charge has been dismissed;
- A defendant’s motion for a new trial has been granted on the ground of newly-discovered or newly-available evidence, but the appeal is only on a question of law;
- A defendant’s motion to suppress evidence has been granted; or
- The sentence imposed:
- Resulted from an incorrect determination of the defendant’s prior record level or prior conviction level;
- Contained a type of sentence disposition that is not authorized for the defendant’s class of offense and prior record or conviction level;
- Contained a term of imprisonment that is for a duration not authorized for the defendant’s class of offense and prior record of conviction level; or
- Imposed an intermediate punishment based on findings of extraordinary mitigating circumstances that are not supported by evidence or are insufficient as a matter of law to support the dispositional deviation.
For more information, see the related entry on Double Jeopardy – Retrial and Appeal. When the state appeals a motion to suppress, the prosecutor must “timely file” the certificate required by G.S. 15A-979(c) (verifying that the appeal is not being take for the purpose of delay, and the excluded evidence is essential to the case). In State v. Turner, 305 N.C. 356 (1982), the court ruled that such a certificate is timely filed if it is filed before the record on appeal is certified to the appellate division. See also State v. Blandin, 60 N.C. App 271 (1983) (holding that certificate was not timely filed when it was not filed before the record on appeal was certified).
Release Pending Appeal?
When the state appeals from a dismissal of charges, the effect of the dismissal is not stayed. See G.S. 15A-1451(b). Therefore, the defendant is free on those charges unless or until they are reinstated by the appellate court.
Writ of Certiorari and Other Review
When there is no other statutory right to appeal, the state’s only remaining option is to seek discretionary review through a writ of certiorari.
- Writ of Certiorari by Superior Court Judge to Review District Court Ruling
To seek review of a district court ruling when the state has no other statutory right of appeal (for example, when a pretrial motion to suppress is granted in a non-DWI misdemeanor case), a prosecutor may file a writ of certiorari to the superior court under Rule 19 of the General Rules of Practice for the Superior and District Courts. See State v. Hamrick, 110 N.C. App. 60 (1993) (upholding authority of a superior court judge to issue a writ of certiorari and reinstate a charge which the district court had improperly dismissed); see also State v. Freund, 326 N.C. 795 (1981) (not directly discussed in the opinion, but state petitioned for a writ of certiorari in this case).
- Writ of Certiorari by Appellate Division to Review Trial Judge’s Ruling
The appellate courts may also choose to issue a writ of certiorari in order to review a ruling of a district or superior court judge. North Carolina Rules of Appellate Procedure, Rule 21. See, e.g., State v. Rorie, 348 N.C. 266 (1998) (issue on review was later superseded by statute, but "the State petitioned this Court for a writ of certiorari, which was allowed, to review the trial court's 9 May 1996 interlocutory order precluding the State from seeking the death penalty").
- Writ of Mandamus or Prohibition May Only Be Issued by Appellate Courts
A writ of mandamus is an order from a court to an inferior government official, ordering that official to properly fulfill his or her duties or correct an abuse of discretion. A superior court judge has no authority to issue a writ of mandamus or prohibition to a district court judge. See In re Redwine, 312 N.C. 482 (1984); State v. Surles, 55 N.C. App. 179 (1981). In other words, a superior court judge has authority to order that a charge which was dismissed by a district court judge shall be reinstated, but the superior court judge does not have the authority to directly instruct the district court judge to enter such an order. By contrast, the appellate courts do have the authority to issue a writ of mandamus or prohibition to a district or superior court judge. See generally In re Greene, 297 N.C. 305 (1979); North Carolina Rules of Appellate Procedure, Rule 22.