North Carolina Criminal Appeals FAQ

This is probably the most frequently asked question we receive from appellate clients. For many, filing a criminal appeal is one of their only chances to see their conviction reversed, to receive a fair, new trial, or to receive a new sentencing hearing. Those convicted of a crime in North Carolina have the right to appeal that conviction, even if they pled guilty. In order to succeed on appeal, however, you must show that the trial court made certain types of errors that unfairly prejudiced you.

Grounds for an appeal include the trial court not having jurisdiction over the case; making a wrong decision on a motion that prejudiced your defense; making an error that violated your constitutional rights; or ruling in a way that was contrary to law.

The best way to determine whether or not you have valid grounds or reasons to appeal is to speak to an experienced criminal appeal lawyer. We can review your case and advise you as to whether you have the sufficient legal grounds to appeal.

Defendants need to provide a notice of their appeal as soon as possible. They must provide notice of their appeal orally in open court, or in writing within 14 days after the judge issues the defendant’s sentence. It is essential to contact a lawyer as soon as possible after your conviction to avoid losing your right to file an appeal. North Carolina courts are strict about the filing deadlines for appeals.

After filing a notice of appeal, the trial court reporter will prepare a written record or transcript of the trial called a Record of Appeal. In non-capital criminal cases, the court reporter will have 60 days to prepare the transcript. In some cases, the court will grant the court reporter an extension of 30 days to prepare the transcript.

After the defendant’s appellate lawyer receives the transcript, the lawyer has 35 days to prepare a Record on Appeal in a non-capital case. The Record on Appeal explains all of the potential legal errors that could have kept the defendant from receiving a fair trial or a fair sentence. After the defendant’s lawyer submits the Record on Appeal, the prosecution will have 21 days to respond to the Record. Prosecutors can agree, object, or move to add their own information to the Record.

In North Carolina, the North Carolina Court of Appeals hears non-capital criminal appeals. This includes appeals of felony convictions from Superior Court and appeals of misdemeanor convictions in District Court if Superior Court has already ruled against you. The Supreme Court of North Carolina hears appeals for capital cases, which means the defendant was sentenced to the death penalty.

There are 15 judges in the North Carolina Court of Appeals. Of those 15, three (3) judges are assigned to each appeal. In the North Carolina Supreme Court, there are seven (7) judges total, all of whom hear each appeal the Supreme Court decides to hear.

During the appeal, the defendant’s lawyer and the prosecution will submit written briefs that outline all of their arguments. Once briefs have been filed, it is up to the panel of judges to decide whether or not to allow oral argument in the case. This is where both sides appear before the panel of judges, make their arguments (each side is limited to 30 minutes), and answer questions posed by the judges.

If oral argument is not allowed, the panel of judges rules on the case based solely on the parties’ briefs and the Record on Appeal.

Unlike during a jury trial, the three-judge panel does not have to rule unanimously on an appeal. In both North Carolina’s Court of Appeals and Supreme Court, a majority wins. Oral arguments are not held in most Court of Appeals cases, but they are regularly held in Supreme Court cases.

When the appellate judges find that an error happened in the trial that prejudiced the defendant, or made the trial, guilty plea or sentencing unfair, the actions the appellate court can take include:

• Reversing the conviction if the appeals court rules there was insufficient evidence to convict the person.
• Reversing the conviction, vacating the judgment, and sending the case back to the trial court for a new trial if the appeals court rules that an unfair error or errors occurred during the trial or guilty plea. If a new trial is ordered, it will be up to the District Attorney’s office to decide whether or not to refile the charges.
• Upholding the conviction, and sending the case back to the trial court for a new sentencing hearing if the appeals court finds there were unfair errors during sentencing
• Sending the case back down to the trial court with instructions to make further findings of fact. Appeals courts can only look to evidence in the trial record (transcripts, filed motions, orders on pretrial motions) when considering appeal, so if the record is too unclear for the appeals court to rule, the trial court may be ordered to make more detailed findings.