521.1Juvenile Appeals
Key Concepts
- The state has a limited right to appeal from a court order finding the charging statute to be unconstitutional, or otherwise “terminating the prosecution” based on specified grounds.
- Juveniles have the right to appeal to the North Carolina Court of Appeals after entry of a “final order” in the case, but there is generally no right to appeal from interlocutory rulings such as a finding of probable cause or ruling on a motion to suppress.
- The juvenile may ask the superior court to review the record of the district court’s decision to transfer the case, but this review is only for an abuse of discretion.
State’s Right to Appeal
The state has a right to appeal in juvenile cases, but it is significantly more limited than the right to appeal which is afforded to the juvenile (discussed below). Under G.S. 7B-2604(b), the state’s appeal in delinquency cases is limited to the following orders:
1. An order finding a state statute to be unconstitutional; or
2. Any order that “terminates the prosecution of a petition” by:
a. Upholding the defense of double jeopardy;
b. Ruling that a cause of action is not stated under a statute; or
c. Granting a motion to suppress.
What counts as “terminating the prosecution?”
In some cases, it will be very clear that the court’s order has terminated the prosecution because the judge will dismiss the petition on the grounds that it is unconstitutional, violates double jeopardy, or fails to state a cause of action.
However, in cases where the court’s order only grants a motion to suppress evidence, it may be unclear from the record whether that order of suppression was sufficient to “terminate” the prosecution on its own. See In re P.K.M., 219 N.C. App. 543 (2012) (dismissing state’s appeal because granting the juvenile’s motion to suppress did not, by itself, necessarily terminate prosecution of the petition). The court in P.K.M. did not explicitly hold that the state’s appeal is limited to situations where the trial judge enters a dismissal on the grounds that there is now insufficient evidence due to granting the motion to suppress, but for purposes of preserving the issue on appeal that would probably be the preferred rationale to have stated in the order. For more information, see the related Juvenile entry on Motions (Section A., Motions to Suppress).
There is also a provision in the statute that allows a county to appeal from any order in which the county has been directed to pay for medical, surgical, psychiatric, psychological, or other evaluation or treatment of the juvenile (or the evaluation or treatment of a parent) under G.S. 7B-2502 or 2702. See G.S. 7B-2604(c).
Juvenile’s Right to Appeal
With the exception of a limited appeal regarding the decision to transfer the case to superior court (see below), or rare instances where a writ of certiorari may be taken up by the N.C. Supreme Court (see below), all other juvenile appeals go to the N.C. Court of Appeals. See G.S. 7B-2602. Appeal can be made by the juvenile or the juvenile’s parent/guardian/custodian. Id. The notice of appeal generally must be given (either orally in court, or in writing) within 10 days after entry of a final order, and must be made in proper form. See G.S. 7B-2602; G.S. 7B-2604; see also In re A.V., 188 N.C. App. 317 (2008); North Carolina Rules of Appellate Procedure, Rule 3.
If the juvenile appeals and is in custody, the district court should release the juvenile, with or without conditions, pending disposition of the appeal – unless there are compelling reasons why the juvenile should not be released, which the court must put in writing. See G.S. 7B-2605. If there are compelling reasons not to release the juvenile, the court may enter a temporary order affecting the custody or placement of the juvenile that the court finds to be in the best interest of either the juvenile or the state. Id.
The juvenile’s ability or inability to appeal from several of the most common situations and orders are summarized below:
1. Final Order
A juvenile may appeal from any "final order" in the case, which is specifically defined to include: (i) an order finding absence of jurisdiction; (ii) any order which “in effect” determines the action and prevents a judgment from which appeal can be taken; (iii) order of disposition after an adjudication of delinquency; or (iv) any order modifying custodial rights. See G.S. 7B-2602.
2. Probable Cause
The juvenile cannot appeal directly from a court’s finding of probable cause, because that is not a “final order.” See In re K.R.B., 134 N.C. App. 328 (1999). Instead, the juvenile must wait until the case is concluded, and then he or she may argue on appeal that the court should not have found probable cause. For more information, see the related Juvenile entry on Probable Cause Hearings.
3. Transfer
Juveniles have a limited right to ask the superior court to “review” the record of the district court’s decision to transfer the case. See G.S. 7B-2603(a). This review is strictly limited to evaluating whether the district court abused its discretion by ordering a transfer – it is not a de novo review, and the superior court should not make new findings or analyze whether it would have made the same decision which the district court made. For more information, see the related Juvenile entry on Transfer Hearings. The juvenile must appeal the transfer to the superior court in order to preserve the issue for subsequent appeal to the Court of Appeals. See State v. Wilson, 151 N.C. App. 219 (2002).
4. Capacity to Proceed
There is no right to directly appeal from the court’s finding that a juvenile has capacity to proceed, because that is not a final order. As with probable cause, discussed above, the juvenile must wait until the case is concluded and then he or she can raise the issue on appeal (assuming it was properly preserved by objection). See In re Pope, 151 N.C. App. 117 (2002). For more information, see the related Juvenile entry on Basic Concepts (Section D – Capacity to Proceed).
5. Admission
In contrast to the limitations imposed on appeals from adult defendants who enter a guilty plea (see G.S. 15A-1444), a juvenile who enters an admission does not appear to face any similar limitations under G.S. 7B-2602. Therefore, once disposition is entered and the case is concluded, a juvenile who resolved his or her case by admission may still be able to raise any disputed issues on appeal.
Notice of intent to appeal?
Although it is not specifically addressed in the juvenile statutes, the state should argue that in order to preserve the right to appeal, the juvenile is required to give notice to the state of his or her intent to appeal before accepting a plea offer and entering the admission, and the notice should be made part of the record at the time of the admission. See generally State v. Tew, 326 N.C. 732 (1990) (“when a defendant intends to appeal from the denial of a suppression motion pursuant to this section, he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute”); State v. Brown, 142 N.C. App. 491 (2001) (citing G.S. 15A-979(b), “defendant bears the burden of notifying the state and the trial court during plea negotiations of the intention to appeal the denial of a motion to suppress, or the right to do so is waived after a plea of guilty”).
6. Denial of Motion to Suppress
The juvenile may not immediately appeal the court’s decision on the motion to suppress, since that is only an evidentiary ruling and not a final order. However, it is specifically noted in G.S. 7B-2408.5(g) that the juvenile may raise the denial of the motion to suppress as one of the issues “on appeal of a final order” in the case (i.e., after the case is concluded by adjudication and disposition).
7. Adjudication
The adjudication itself is not a “final order,” so in most cases the juvenile has to wait until the disposition has also been entered to appeal. See In re M.L.T.H., 200 N.C. App. 476 (2009). However, if no disposition is entered within 60 days of the adjudication date, then the juvenile may enter written notice of appeal as long as it is done within 70 days of the adjudication date. See G.S. 7B-2602; In re D.F.M., 76 N.C. App. 189 (2006) (unpublished); see also In re T.E.B., 241 N.C. App. 175 (2015) (unpublished) (juvenile must wait for the full 60 days to run before filing or else the appeal is premature).
8. Appeal to North Carolina Supreme Court
If the juvenile fails to timely appeal to the North Carolina Court of Appeals, he or she may petition by writ of certiorari for the North Carolina Supreme Court to take the case. See N.C. Rules of Appellate Procedure, Rule 21(a)(1). In practice, such petitions are very rarely granted. Otherwise, the juvenile’s appeal could reach the state Supreme Court either by right (based upon a dissent in the Court of Appeals) or on petition for discretionary review (if the Court of Appeals was unanimous). See G.S. 7A-30; G.S. 7A-31.
If a challenged ruling or order is ultimately affirmed by the Court of Appeals (or Supreme Court, if applicable), the trial court has the authority to modify or alter the original order of adjudication or disposition, if the court finds it to be in the best interest of the juvenile to reflect any adjustment or change in circumstances that arose during the time when the case was on appeal. See G.S. 7B-2606. The court can enter that modification ex parte, as long as it gives notice to the parties to show cause within 10 days why the change should not be made. Id.
