Criminal Appeals Process

In most cases, a criminal defendant has a right to appeal his or her conviction and sentence to the appellate courts of North Carolina.

A defendant may give notice of appeal orally in open court or in writing within 14 days after the judge sentences him or her.

The appeals process can be very lengthy, lasting several months or years.

If you are a victim who would like to be kept informed about an appeal, you should notify the District Attorney’s Office that prosecuted the trial. Please make sure that the District Attorney’s Office has your current address and telephone number.

First, a transcript (written record) of the trial must be prepared by a court reporter. In a capital case (the defendant has been convicted of first degree murder and sentenced to death), the court reporter has 120 days to prepare the transcript. In a non-capital case, the court reporter has 60 days to prepare the transcript. Courts may grant extensions of time, often 30 days.

After the transcript has been delivered to the defendant’s appellate lawyer, that lawyer has 35 days in a non-capital case and 70 days in a capital case to prepare the Record on Appeal. The Record on Appeal explains possible legal errors that may have kept the defendant from getting a fair trial or sentence. Courts may grant extensions of time, often 30 days.

The defendant’s appellate lawyer prepares the Record on Appeal and then serves it on the prosecutor who handled the initial trial. The prosecutor can: (1) agree to the Record; (2) object to parts of the Record; or (3) move to add information to the Record. After receiving the Record, a prosecutor has 21 days to respond in a non-capital case or 35 days in a capital case.

If the prosecutor and the defendant’s lawyer cannot agree on the Record on Appeal, the trial judge must settle the Record within 20 days of a request for settlement. Courts may grant extensions of time, often 30 days.

Once the Record is settled, it must be filed in the proper appellate court. Printed copies are sent to the Attorney General, who represents the State of North Carolina in appellate court. This usually marks the first time that the Attorney General’s Office becomes involved a case. If you have questions about an appeal before the Record is filed, contact the local District Attorney’s Office.

When a copy of the Record arrives at the Attorney General’s Office (usually within a week of mailing), the Appellate Section receives it and assigns the appeal to an attorney. The State’s attorney then contacts the District Attorney and the defendant’s appellate lawyer, requests the trial transcript from the District Attorney’s Office, and contacts any interested victim(s).

If you are a victim who has requested notification about an appeal, the State’s attorney is responsible for providing you with the following information: the date, time and place of any appellate proceeding; the progress of an appeal; the final outcome of an appeal.

After the Clerk of the Appellate Court mails the printed Record to both parties, the defendant has 30 days (60 days in a capital case) to file a brief, which is a written legal argument, in support of the legal errors raised in the Record. The State’s attorney then has 30 days (60 days in a capital case) to file a brief responding to the defendant’s brief. Courts may grant extensions of time, often 30 days.

In capital cases, appeals go directly to the Supreme Court of North Carolina and are heard by all seven justices. In non-capital cases, appeals go to the North Carolina Court of Appeals and are heard by a panel of three judges out of a total of 15 judges.

In an oral argument, attorneys present information to the court verbally. No witnesses testify and no evidence is presented. Each side has 30 minutes to argue, which is strictly limited to the legal errors raised in the Record on Appeal and in the briefs. If oral argument will be held, it is usually scheduled within several months after the State files its brief. Oral argument is almost always held in the Supreme Court, while oral argument is not held in most Court of Appeals cases.

An appellate court may issue its opinion, or decision, in as little as a month or as long as a year or more. The average time period is 6 months, but there is no time limit. Length of time does not indicate what kind of decision the court will reach. Opinions are available on the Internet at the Administrative Office of the Courts. The Court of Appeals issues opinions on the first and third Tuesday of each month. The Supreme Court issues opinions once each month, usually during the first or second week of the month.

Unlike a jury verdict, an appellate court decision does not have to be unanimous. A majority decides the case. That means that a Court of Appeals case can be decided by two out of three judges, and a Supreme Court case can be decided by four out of seven justices. Judges or justices who disagree with the majority decision are said to dissent from the opinion.

If the appellate court were to find that prejudicial (unfair) error(s) occurred during the trial, the court would set aside or reverse the conviction, vacate the judgment, and remand, or send back, the case to the trial court for a new trial. The District Attorney decides whether or not to prosecute a new trial.If the appellate court were to find that prejudicial error(s) occurred during sentencing, the court would uphold the conviction but remand the case to trial court for a new sentencing hearing. If the appellate court finds that there was insufficient evidence to support the jury’s verdict, the court would reverse the conviction.

If the appellate court did not find any prejudicial error in the trial, sentencing, or jury’s verdict, the court would uphold the conviction and sentence and deny the defendant’s appeal. If the appellate court finds error but determines that it was not prejudicial, or didn’t unfairly affect the outcome of the case, the court would uphold the conviction and sentence and deny the defendant’s appeal.

If a Court of Appeals decision is not unanimous, the losing side has the right to appeal to the Supreme Court. If the case involves a “substantial constitutional question” that has not already been decided by the Supreme Court, the losing side has the right to appeal to the Supreme Court. If there is no dissent and no constitutional question, the losing side may petition the Supreme Court for discretionary review of the case.

To learn more about victims’ legal rights, please see the North Carolina Constitution (Article 1, Section 37) and North Carolina General Statute 15A-830 through 842, which are available on the North Carolina General Assembly web site.