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Disclaimer: Have a case and considering whether to appeal? Keep me in mind there are time restraints and certain requirements that must be satisfied in order to properly assert an appeal in your case. This information is not intended to take the place of an attorney or to suggest you should attempt to file an appeal on your own. You should still seek assistance and advice from an attorney. This information is not exhaustive and does not cover filing appeals with the North Carolina Court of Appeal or Supreme Court.

Can I Appeal Any Case and How Do I Appeal My Case?

An appeal may be asserted in two ways: make a (verbal) motion in open court of your intent to appeal or file a written motion with the Clerk of Court. Most cases are appealed from District Court to Superior Court. Misdemeanor convictions may be appealed directly to the Superior Court in the same jurisdiction in which it was previously filed. When such an appeal is made, the case is transferred to Superior Court for a new trial. Most cases can be appealed, with the exception of infractions. Infractions are minor non-criminal charges that, if convicted, do not result in possible jail or prison time. An infraction only carries a small monetary penalty. Infractions, because they are so minor may not be appealed, unless the infraction is a lesser included charge of a criminal charge and the Superior Court had jurisdiction of and disposed of the charge within its jurisdiction.

An appeal must be asserted, orally or in writing, within 10 days after a conviction and likewise, may be withdrawn within 10 days after it has been filed and before the case has been calendared on the Superior Court calendar. If a party withdraws an appeal, the prior judgment stands and the party must comply with that judgment previously entered. However, if the case has been placed on the calendar, it may then only be withdrawn with consent of a Superior Court judge, which will result in it being remanded (sent back down) to District Court for the prior judgment to be entered and to which you will have to comply.

Once the case is transferred to Superior Court, any pre-trial release conditions in place remain in effect unless a Superior Court judge modifies them.

 

Who May File an Appeal?

Any person or entity who is a party to a legal matter may appeal, including the State. The State may appeal if the District Court has dismissed criminal charges and the State believes there is sufficient evidence to prove the criminal charges, or if the State discovers new evidence giving it a sufficient basis to prove the criminal charges. However, if the appeal and new trial will place the defendant in double jeopardy (being tried more than once for the same crime) then the State may be prevented from asserting an appeal.

 

When Will I Lose My Right To Assert An Appeal?

If, in district court, the defendant (or his or her attorney) fails to object to an error or file a motion, the relief that otherwise would have been available through an appeal may be lost. In other words, the defendant would have waived his right to appeal on that particular issue. However, even in the absence of an objection or motion in District Court, if a Superior Court finds the lower court’s error affects a substantial right of the defendant, it may exercise its discretionary power to review the issue even though the defendant previously waived his right on that issue.

 

What Happens If I Enter a Guilty Plea?

A defendant who enters a plea of guilty has an automatic right to an appeal if he or she finds the evidence presented does not support the conviction, to contest the sentence if the sentence does not fall within the sentencing guidelines, to contest his sentence based on an incorrect calculation of his prior record level, or an improper active sentence period.

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