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I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo (Part I)

February 22nd, 2010
By Alyson Grine

Jay Jones is charged with possession of drug paraphernalia and given an unsecured bond of $1,000. He is convicted following a bench trial in district court. Noting that Jones is a prior conviction level III and has previously violated probation, the judge imposes an active sentence of 120 days. Jones enters notice of appeal in open court because he wants a jury trial. What may the district court judge properly say at this point?

(1) Bailiff, he’s in your custody to begin serving his active sentence unless and until a different result is reached in superior court.

(2) Mr. Jones, it is your right to appeal. However, I am securing and doubling your bond pending your trial in superior court. Bailiff, he’s in your custody.

(3) Mr. Jones, you are free to leave after the DA notifies you of your court date for superior court. The current bond remains in effect and this court has no power to do anything further in this matter.

Discussion:

Statement (1). The issue is whether entry of notice of appeal stays execution of the judgment. Clearly, it does. Pursuant to G.S. 15A-1431(f1), an appeal from a district court conviction “stays the execution of all portions of the judgment,” including active punishment. What if Mr. Jones does not enter notice of appeal in open court, but instead sends written notice to the clerk four days after starting his sentence? There does not appear to be authority for the jail to continue to hold him. Execution of the judgment is stayed, regardless of whether notice of appeal was entered in open court or in writing. The original bond is in effect and, in our scenario, the original bond was an unsecured one. G.S. 7A-290 (“original bail shall stand pending appeal” unless modified); G.S. 15A-1431(e) (“order of pretrial release remains in effect pending appeal” unless modified). Upon receiving notice of appeal, clerks are advised to notify the jail that execution of the sentence is stayed and the defendant should be released (unless, of course, the defendant was in custody prior to the bench trial because he had not met the conditions of pretrial release), according to the NC Administrative Office of the Courts (AOC).

May Jones be held in custody for the period of time it takes to get him before a district court judge for reconsideration of his bond? Again, there does not appear to be legal support for such a practice and the AOC advises against it. A person who has met the conditions of release must be released. G.S. 15A-537(a). “[I]n the absence of a judicial official, any law-enforcement officer or custodial official having the person in custody must effect the release….” Id. North Carolina has a statutory mechanism that automatically puts the original bond in effect pending appeal; no hearing is contemplated unless a party makes a motion to have one.

Holding the defendant in custody for reconsideration of his bond is analogous to holding him without bond or delaying the setting of conditions, practices that are authorized only in limited circumstances and with explicit statutory authority. See G.S. 15A-533(b) (every defendant charged with a noncapital offense must have conditions of pretrial release determined); but see John Rubin, Exceptions to Pretrial Release Procedures: A Guide for Magistrates (rev. Dec. 2009) (noting, for example, that there is no right to pretrial release pursuant to G.S. 15A-533(a) where a person is alleged to have committed a crime while involuntarily committed). By way of illustration, the hold for a judge to set pretrial release conditions under G.S. 15A-534.1 is carefully tailored; the hold is allowable only for specified domestic violence offenses, where a certain relationship exists (defined more narrowly than the “personal relationship” for purposes of G.S. 50B-1), and for a time period that may not exceed 48 hours. North Carolina courts have upheld G.S. 15A-534.1 as constitutional but have found that the failure to bring a defendant before a judge at the earliest reasonable opportunity results in a violation of procedural due process and may require dismissal. See State v. Thompson, 349 N.C. 483 (1998). In sum, absent an explicit exception to G.S. 15A-533(b), a detainee may have grounds for dismissal or for a writ of habeas corpus. See G.S. 17-1, et. seq.

While holds based on entry of notice of appeal do not appear to find support in the law, the State’s hands are not tied if there is reason to believe that reconsideration of a defendant’s bond is warranted (e.g., after entering notice of appeal, the defendant is overheard to say that he plans to leave the state—a factor that may justify imposition of a secured bond under G.S. 15A-534(b)). The prosecutor “may at any time apply to an appropriate district court judge or superior court judge for modification or revocation of an order of release,” pursuant to G.S. 15A-539(a). To which judge should the prosecutor apply? That is a thorny question as you will see from the discussion of statements (2) and (3) in tomorrow’s blog post.

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6 Responses to “I Want a New Trial! Now What? A District Court Judge’s Authority to Act Following Entry of Notice of Appeal for Trial De Novo (Part I)”

  1. Brian Oglesby says:

    What about when a district court judge says: “if the Defendant gives notice of appeal I set an appeal bond in the amount of $4,000?” One day later, the Defendant gives notice of appeal, does his now previously unsecured 1K bond now become 4K?

  2. Matthew Schofield says:

    I’ve been dealing with this issue in Dare County…
    It is not at all uncommon for a judge to set an appeal bond- seemingly for no other reason than the judge doesn’t think it should waste people’s time in superior court. Recently, I sought clarification on the appeal process because the clerk’s office tried to tell me I couldn’t file written notice of appeal(!). The rule here is that if you file written notice of appeal, 1) the case must be brought before the same district court judge for reconsideration of the bond; 2) that it is the defense attorney’s responsibility for adding it to the calendar for said reconsideration; and 3) this reconsideration can take place after 10 days despite statutory language that states the matter is under superior court jurisdiction after 10 days.
    My questions are: 1) can the local rule require reconsideration of bond after appeal? (my guess is “probably”, since judges have that discretion); 2) can the local rule require defense attorneys be responsible for adding it to the calendar for reconsideration? (my opinion is that if the local judges want reconsideration to be the rule, it’s up to them, i.e.clerks, to calendar it upon notice of appeal); 3) who has jurisdiction after 10 days? The chief district court judge remarked that the GA could not have created a scenario that precludes a district court judge from reconsideration of a bond, and that for purposes of reconsideration, the 10 day jurisdiction rule does not apply.
    Would like to discuss the implication of using the appeal bond as a punitive measure, but have said enough for now…

  3. Matthew Schofield says:

    Just read post #2, which addresses some of the above questions…

  4. Alyson Grine says:

    I do hope the second post shed light on some of your questions. If one reads G.S. 15A-534(e) to say that entry of notice of appeal throws up a wall beyond which the district court judge may not modify pretrial release conditions, then it would appear that the district court judge could not hurdle that wall by ruling in advance on the issue (e.g., “If the defendant gives notice of appeal at some time in the next ten days, I order now that his bond be modified to 4k at that time.”). I do see some language (in civil cases) disapproving the practice of judges setting anticipatory or contingent judgments. See, e.g., Baxter v. Jones, 283 N.C. 327. Also, where the modification is triggered solely by entry of notice of appeal, I would question whether there are constitutional concerns, as I bring up in the last paragraph of post II. I appreciate your thoughtful comments.

  5. Alyson Grine says:

    I found a little dicta from a criminal case, State v. Hilbert, 145 N.C. App. 440, 446 (2001), disapproving the setting of anticipatory bonds in the context of (potential, alleged) probation violations.

    Notwithstanding, although not addressing this assignment of error for the foregoing reasons, we feel compelled to urge caution on the part of our trial courts regarding the setting of anticipatory probation violation appearance bonds similar to that sub judice. See N.C.G.S § 15A-1345(b)(1999)(probationer arrested during period of probation for violation of any condition of probation “ must be taken without unnecessary delay before a judicial official to have conditions of release pending a revocation hearing set in the same manner as provided in G.S. 15A-534”) (emphasis added). Should a sentencing court imposing a probationary judgment seek to address the matter of appearance bond in the event of the defendant’s arrest for alleged violation of conditions of probation, we perceive the better practice to be that the court “recommend” bond in a certain amount upon issuance of a probation violation warrant.

  6. mark says:

    North Carolina simple poss weed and paraphernalia no bond only citation. If found guilty and I appeal what are the judges options as far as appeal bonds?? Im thinking no bond just a continue to supreme court. please tell me something good.!

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