403.1Withdrawal, Remand, & Resentence

Last Updated: 12/01/23

Key Concepts

  • A defendant who appeals from district court for trial de novo in superior court may withdraw the appeal or ask the superior court to remand it to district court; upon remand to district court, the previously entered judgment takes effect (except in DWI cases, which generally require a new sentencing hearing).
  • A defendant may likewise withdraw an appeal to the Court of Appeals, in which case the stay on the judgment is lifted and it takes effect. The judgment also takes effect if the Court of Appeals affirms the conviction.
  • In most cases, the defendant may not receive a more severe sentence following an appeal unless the more severe sentence is required by law; however, this rule does not apply to appeals from district court for trial de novo in superior court.

Remand from Superior Court

Practice Pointer

Different Rules for DWI
This entry begins by addressing the rules and procedures which generally apply to criminal cases in district and superior court, but prosecutors should bear in mind that there is a separate statutory scheme that governs the remand and resentencing of DWI offenses, which are briefly addressed in Section 3 below.

  1. Process and Timing
    Within ten days of the entry of judgment in district court, a defendant may give notice of appeal to superior court for trial de novo. See G.S. 7A-290; G.S. 15A-1431(c). The notice may be given orally in open court or in writing to the clerk. Id. A judgment is considered “entered” when the sentence is pronounced. See G.S. 15A-101(4a).
    The defendant may withdraw that appeal within ten days of the entry of judgment and comply with the district court judgment. Because a remand from superior court to district court is automatic when an appeal is withdrawn within the ten-day period, no new or different conditions may be imposed on remand. See G.S. 15A-1431, Official Commentary. Thus, the defendant must comply with the original trial court’s judgment on remand. A defendant may not be ordered to pay superior court costs if the appeal is withdrawn before the expiration of the ten-day period for entering notice of appeal. See G.S. 7A-304(b); G.S. 15A-1431.
    Once the ten-day period has expired, the clerk must transfer the case to superior court. See G.S. 15A-1431(c); G.S. 7A-290. The defendant in superior court may still withdraw his or her appeal at any time before calendaring of the case for trial de novo; if he or she does so, the case is automatically remanded to district court for execution of the judgment. G.S. 15A-1431(g). A defendant may also withdraw the appeal after calendaring of the case in superior court for trial de novo, but only “by consent of the court” and upon payment of superior court costs, unless those costs (in whole or in part) are remitted. G.S. 15A-1431(h).
    Practice Pointer

    What says the state?
    Under G.S. 15A-1431(h), the court must consent to the defendant withdrawing an appeal. There is no comparable provision that requires the consent of the state before allowing the withdrawal in regular misdemeanor cases, but some judges will ask whether the state consents or objects. In the vast majority of cases, the prosecutor will be perfectly willing to see the case remanded and taken off the superior court calendar. But if there is some particular reason why the state is opposed to a remand (e.g., the state has acquired additional evidence and would prefer to have a new sentencing hearing following a trial de novo), the prosecutor can ask the judge to deny the remand request. One important exception to this rule is a DWI appeal that has been calendared in superior court, which does require the state's consent for remand. See the discussion of DWI cases in section 3, below.

  1. Effect of Remand
    When a case is remanded from superior court to district court for compliance with the district court judgment, the district court is without authority to modify the judgment. See State v. Huntley, 105 N.C. App. 709 (1992). AOC-CR-321B (Order Of Remand) may be used when a superior court judge has permitted the defendant’s withdrawal of an appeal after the calendaring of the case in superior court and has ordered that the defendant pay the superior court costs. If a case is remanded to district court for execution of the district court judgment, the date of the conviction for future trial and sentencing purposes is the date of the original entry of judgment in district court. State v. Wilkins, 128 N.C. App. 315 (1998).
  2. Special Rules for DWI Cases
    G.S. 20-38.7(c) provides that despite G.S. 15A-1431, for any implied-consent offense (DWI and related offenses) in which the defendant is convicted in district court and appeals for trial de novo in superior court, the sentence imposed by the district court is vacated on giving the notice of appeal. If the case has already been calendared in superior court, it may be remanded back to district court only with the consent of the superior court judge and the prosecutor. G.S. 20-38.7(c)(3); G.S. 15A-1431(h). If the case is remanded back to district court, the district court must hold a new sentencing hearing and must consider any new convictions, unless the prosecutor certifies in writing that he or she has no new sentencing factors to offer the court. See G.S. 20-38.7(c).

Remand from Court of Appeals

  1. Withdrawal of Appeal
    When a case is on appeal to the Court of Appeals, some aspects of the judgment (costs, fine, probation) are stayed, but the defendant can still be ordered to begin serving an active sentence unless the judge releases him or her on conditions. See G.S. 15A-1451. For more information on which parts of the judgment take effect, see the related entry on Appeals and Relief – Defendant’s Appeal (Section C, “Custody and Judgment Pending Appeal”). 
    If the defendant withdraws his or her appeal, the stay of execution of the judgment initiated by the notice of appeal is terminated. See G.S. 15A-1450; G.S. 15A-1451(a); G.S. 15A-1452(a). The clerk of the superior court will enter an order to that effect, directing compliance with the previously entered judgment. See G.S. 15A-1452(a). The defendant may choose to withdraw the appeal at any time before the Court of Appeals decides the matter. See G.S. 15A-1450; N.C. Rules of Appellate Procedure, Rule 37(d).
Practice Pointer

On second thought…
Though it will rarely occur in practice, it is permissible for the defendant to withdraw the notice of appeal but then change his or her mind again and enter a second notice of appeal, as long as the second notice is still filed within 14 days of the final judgment. See G.S. 15A-1448(a)(5) (“The right to appeal is not waived by withdrawal of an appeal if the appeal is reentered within the time specified,” which is 14 days per North Carolina Rules of Appellate Procedure, Rule 4(a), unless an MAR has been filed).

  1. After Decision by Appellate Court
    If the Court of Appeals affirms the trial court’s judgment, then the clerk of superior court will file the directive of the appellate court, and order compliance with its terms. See G.S. 15A-1452(b). If the Court of Appeals orders a new trial, or directs that any other proceedings take place (e.g., conduct a new sentencing hearing or make additional findings of fact), the clerk must file that directive and bring it to the attention of the district attorney or the court for compliance with the directive. See G.S. 15A-1452(c).
  2. Trial Court’s Authority While Appeal is Pending
    While the case is on appeal, the trial court retains jurisdiction to act as needed regarding defendant’s release conditions. See G.S. 15A-1453(a). The appellate court may also direct the trial court to take additional steps such as appointing counsel, conducting hearings related to the appeal, taking evidence, or other proceedings related to motions for appropriate relief in the case. See G.S. 15A-1453(b).

Greater Punishment upon Resentencing

 If a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the sentencing judge may not impose a new sentence for the same offense (or for a different offense based on the same conduct) which is more severe than the prior sentence. G.S. 15A-1335; North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds, 490 U.S. 794 (1989) (vindictiveness must play no part a defendant’s sentencing, and putting defendants in fear of retaliation in the form of a harsher sentence for exercising their rights would violate due process; if judge gives a more severe sentence upon resentencing, the record must show an objective reason based on conduct that has occurred since the time of the original sentencing to justify the increase); State v. Wagner, 356 N.C. 599 (2002) (error for judge to impose more severe sentence after defendant’s guilty plea and sentence had been set aside on motion for appropriate relief).
However, this limitation does not apply if the original sentence was imposed pursuant to a guilty plea, rather than a jury trial. See G.S. 15A-1335 (statute amended effective December 1, 2013, partially overriding prior contrary cases such as Wagner). Additionally, the statute does not apply if a higher sentence is “statutorily mandated” upon resentencing, such as if the first sentence was calculated incorrectly or based on the wrong sentencing chart. See State v. Skipper, 214 N.C. App. 556 (2011) (no error when judge re-sentenced habitual felon defendant to same total term of 125-159 months for multiple consolidated sentences, even though one underlying conviction was reversed on appeal – court was obligated to sentence based on highest consolidated offense); State v. Williams, 74 N.C. App. 728 (1985) (court was required to impose the mandatory minimum sentence, which was higher than defendant’s original sentence).
Additionally, the judge is not statutorily prohibited from imposing a greater sentence for a conviction in superior court after a case is appealed from district court for trial de novo. See State v. Burbank, 59 N.C. App. 543 (1982) (“the possibility of a more severe sentence being imposed is a risk inherent to this type of review”). There is likewise no constitutional bar to a greater sentence in the case of appeal for trial de novo in superior court. See Colten v. Kentucky, 407 U.S. 104 (1972).

Practice Pointer

Different Rules for DWI
Once again, the rules are different for DWI offenses. New sentencing hearings for DWI are conducted pursuant to G.S. 20-38.7 (which directs the court to hold a new sentencing hearing and consider any new convictions that arose during the interim) rather than in accordance with G.S. 15A-1335; therefore, it is possible that the defendant could end up with a more severe sentence upon resentencing. In some circumstances, the defendant may have a right to appeal that new sentence. See G.S. 20-38.7(d).

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