Criminal Appeals

Basic Timeline in Criminal Cases

This information is general and there are slight differences in most cases.  Any of the times listed can be extended by order of the Court.  Based on recent cases, the average time for an appeal is 10 to 16 months.

14 days    Notice of Appeal - given within 14 days of judgment.  (This has been done.)

65 days    Transcript of trial must be delivered within 65 days after reporter receives notice from Clerk of Superior Court.  This time my be extended as needed to allow the reporter time to complete the transcript.  Depends on which county and which reporter.

35 days    From the time the lawyer receives the transcript to prepare the Record on Appeal.  The Record on Appeal is a grouping of all of the documents in a case that show its history.  The Record is sent to the DA’s office.  They go over it and suggest things to be added or deleted.

35 days    From the time the Record is sent to the DA until it is sent to the Court of Appeals.

20 days    Once the record is sent to the Court of Appeals, the clerk of that court assigns the case a number and notifies the lawyers that the case is “docketed” at the Court of Appeals.

30 days    After the case is docketed, we submit our brief to the Court of Appeals.  The Brief contains legal arguments about the errors and a list of court cases and laws that support the argument.

30 days    After we submit our brief the State must submit their brief.

150 days    (Approximate).  The Court of Appeals assigns a panel of judges to decide the case and sets a hearing date.

60 days    From the assignment to the hearing date.

90 days    From the hearing date to the decision of the Court of Appeals.

Your Appeal

There are two levels of appellate courts in North Carolina: the North Carolina Court of Appeals and the Supreme Court of North Carolina.  The Supreme Court is above the Court of Appeals and has the authority to review the decisions of the Court of Appeals.  Unless your case resulted in the death penalty, your case will start in the Court of Appeals.

Your appeal probably will take a year, maybe a little longer.  There is little that can be done to speed up the process.  Your appeal will follow these steps:

    1.    Transcript Preparation.  The Court Reporter who took down a verbatim record of what happened at your trial has 60 days to prepare a transcript.  The reporter may obtain an extension of 30 days without any specific reason.  If required the time to prepare the transcript can be extended for good cause.  Most transcripts are delivered within 90 days.  In rare cases in the busiest counties, reporters require additional time to prepare the transcript.  If your case took a long time to try, or if it was tried in a county where the docket is crowded, it may take many months for a transcript to be prepared.  We cannot control how fast a court reporter prepares the transcript.

    If your case resulted in the death penalty, the reporter has 120 days to prepare the transcript and any extensions must be granted by the North Carolina Supreme Court.  Extensions of up to 60 days are common in death penalty cases.

    During this time, we will also receive a complete copy of the court file from the Clerk of Superior Court in the county where your trial was held.  I will review the file for completeness and correctness.  Not every paper in your file will be sent to Court of Appeals or Supreme Court.

    2.     Record preparation.   The “Record on Appeal” or “Record” is the collection of all the papers that show what happened in your case.  To prepare the Record I read the court file and transcript of your trial carefully, looking for legal errors that may be the basis for a new trial, a new sentencing hearing, or, in a very few cases, dismissal and your release.  These errors usually deal with evidence that the judge should have admitted or excluded, improper jury instructions, or some other error of law made by the judge or the prosecutor.  They are organized in the Record as “Assignments of Error.”

    An appeal is a limited.  There are many kinds of error that cannot be raised on appeal.  First, we cannot argue about whether a witness told the truth.  North Carolina law is very clear that the jury or judge can choose to believe whichever witnesses they want to.  Even if you have perfect evidence that a witness lied on the stand, we cannot address that on an appeal.  We cannot argue that witnesses should have been called to testify who were not called.  For purposes of the appeal, we have to accept the evidence exactly as it appears in the transcript.  Also, it is very rare that mistakes made by your trial lawyer can be raised on appeal.

    New evidence, perfect proof that a witness lied, or poor performance by your trial lawyer can sometimes be handled in another procedure in state court called a “Motion for Appropriate Relief” or in federal court after the appeal is over.  Unless I have been appointed or retained to represent you in a Motion for Appropriate Relief, I will only represent you on the appeal.

    The Record preparation stage usually takes about a month and a half.  If there are specific problems with some evidence, the records in your court file from the courthouse, or any other problem in your case, it may take longer.

    When the Record is complete, I must send it to the district attorney who tried your case.  The district attorney has an opportunity to review the Record and suggest any changes.  We cannot put anything in the Record on Appeal that was not in your court file at the time of the trial.  I will send you a copy of the Record on Appeal.

    2.    Briefing.  After the Record on Appeal is settled with the prosecutor from your trial, it is filed in the appropriate court (either the Court of Appeals or the Supreme Court of North Carolina).  That court prints official copies of the Record and sends them to all the parties and gives them to the Judges assigned to hear our case.  Then I will write your Brief.  This document will discuss several of the Assignments of Error listed in the Record on Appeal, and will argue that you should get a new trial, a new sentencing hearing, or dismissal and release.

    You should not be surprised if many of the Assignments of Error from the Record are not in the Brief.  It is our job to choose the Assignments of Error that will give you the best chance for a good result in the appellate court, and arguing a weak point may weaken the whole Brief.  I will send you a copy of the Brief as soon as it is filed.

    After I file your Brief and send you a copy, an Assistant Attorney General will write a Brief for the State.  The briefing stage of the process takes at least two months and three or four months and even longer in the more complex cases. 

    3.    Oral argument.  After the Briefs are filed, the court will take several months for case preparation and review.  The Court will assign your case a hearing date and may put your case on the calendar for oral argument.  At this argument, we will appear and argue that you should get a new trial, a new sentencing hearing, or release.  The Assistant Attorney General who represents the state will also appear and argue against you.  There will be no witnesses or evidence, and you do not have a right to be there.  However, the arguments are open to the public.

    If your case is in the Court of Appeals, the court usually orders me not to appear for oral argument.  This is not a “bad sign.”  It only means that the court will decide the case on the briefs alone.  Most cases are decided in the Court of Appeals without oral argument.  If the court decides not to hear oral argument, I will have a chance to write a Reply Brief in response to the state’s brief.  The North Carolina Supreme Court has oral argument in all its cases. 

    It usually takes from four to seven months after both briefs are filed for your case to be on the calendar for argument.

    4.    Decision.  After oral argument, the court will decide your case and file a written opinion.  The court has no deadline to meet.  However, it usually takes somewhere between two and five months after the hearing date for the court to decide.  I will send you a copy of the written opinion as soon as I receive it from the court.

    5.    Further appeal.  If your first appeal is to the Court of Appeals and we do not win, it may be possible to appeal to the Supreme Court of North Carolina.  There is not usually an automatic right to appeal to Supreme Court.  The Supreme Court hears less than one percent of the cases lost in the Court of Appeals.  If your first appeal is to the Supreme Court of North Carolina, there is no further appeal.  However, there may be a post-appeal remedy for you.

    Post-Appeal Procedure

    If your appeal is unsuccessful, our representation of you will normally end.  However, you should know about three other procedures.

    1.    Certiorari to the United States Supreme Court.  In a few cases, there are important federal issues that may be raised in the United States Supreme Court.  It is very rare that this court accepts criminal cases to review.  However, you may want to consider this option if there is a strong constitutional issue that will affect not only your case but other cases like yours.

    2.    Writ of Habeas Corpus.  If your conviction violates the United States Constitution, you can petition the United States District Court having jurisdiction over your case for a Writ of Habeas Corpus.  North Carolina Prisoner Legal Services is in a position to help with this procedure if your case has a chance of success.  This is also a procedure that you can follow “pro se,” which means without a lawyer.

    3.    Motion for Appropriate Relief.  If there is new evidence that was not available at the time of your trial or if your trial lawyer did not do an adequate job of representing you, you may have a chance of getting a new trial through a Motion for Appropriate Relief in the State Superior Court where you were convicted.  If you can convince the trial judge in a “pro se” motion that the new evidence would have made a difference with the jury, he will order a hearing.  In this hearing you would present the evidence to the judge.  You are entitled to an appointed lawyer for this hearing.  If the judge believes your new evidence, and believes that a jury might acquit you if it heard the evidence, he or she will order a new trial.

    It is occasionally possible to convince a judge that your lawyer did not do an adequate job defending you or that the prosecutor, the trial judge or one of the jurors did something that made the trial unfair.  The way to raise this kind of complaint is in a Motion for Appropriate Relief after the appeal.  However, Motions for Appropriate Relief on these grounds are almost never successful.

Bond or other issues

    I have been appointed to do one thing: represent you on your direct appeal.  I  cannot represent you in a bond hearing, help you get moved closer to home, or get work release.  If you think you may be eligible for a bond or work release while your case is on appeal, your trial lawyer may be in a position to help.  Appeal bonds are very rare.  Transfers from one correctional facility to another are handled solely by the Department of Corrections.  If you want to be moved, you will have to talk to the warden, program manager, or your case manager at your facility.

Living Conditions

    If you feel that you are being mistreated by the Department of Correction, Prisoners Legal Services may be able to help.  You can contact that office at:

    N.C. Prisoner Legal Services
    Post Office Box 25397
    Raleigh, NC  27611

Contact With Your Lawyer

    We will be in touch by mail when :
        1.    The Record on Appeal is filed;
        2.    Your Brief is filed;
        3.    The court decides your case; and
        4.    If you write with questions or concerns.

    Everything we need for the appeal is in the transcript and the court papers.  We have found that the best use of our time is to work on your appeal in our office.  Ordinarily, we will only come to visit you if we have questions about something in the transcript.  The best way to communicate with us is through the mail.

While You Are Waiting

    There are three important things to do while you wait for your case to be decided:

        First, do not talk to anybody except us about the facts of your case.  Do not talk to your friends or acquaintances where you are.
        Second, stay out of trouble.
        Third, do all you can to improve your situation.  The DOC offers many educational opportunities.  Make the most of it.

    If you do these three things you will be in the best situation possible in the event you do get a new trial or a new sentencing hearing.