Chief Justice Cheri Beasley entered three emergency orders on Saturday affecting court operations during the COVID-19 pandemic. Two of the orders impact criminal cases. One extends the deadline for filing notices of appeal. The other extends the authorization for remote proceedings in Emergency Directive 3 and renews and modifies the provisions of Emergency Directive 7, which provides additional time to pay monies owed in a criminal or infraction case. (The third order stays eviction actions that currently are pending in the trial courts until June 21, 2020 and imposes other requirements related to eviction proceedings.) Continue reading
Tag Archives: notice of appeal
A Trap for the Unwary Prosecutor
In recent years, courts have generally deemphasized formalistic compliance with procedural rules. But sometimes, procedural considerations can still make or break a case. Take, for example, State v. Oates, __ N.C. App. __ (2011), decided last week.
The case began in a seemingly routine manner. The police searched the defendant’s house pursuant to a search warrant, found a gun, and charged the defendant with being a felon in possession of a firearm. The defendant moved to suppress, apparently arguing that the warrant was issued without probable cause. Then the following sequence of events took place:
- 12/14/09 — motion heard, judge orally grants motion
- 12/22/09 — state files written notice of appeal
- 3/22/10 — judge files written order granting motion
The court of appeals sua sponte raised the issue of whether the state’s notice of appeal was effective, and concluded that it was not. It began by citing G.S. 15A-1445(b), which provides that “[t]he State may appeal an order by the superior court granting a motion to suppress as provided in G.S. 15A-979.” Then, it noted that under N.C. R. App. P. 4(a), a party in a criminal case may appeal by “giving oral notice of appeal at trial, or. . . filing notice of appeal with the clerk . . . within fourteen days after entry of the judgment or order.” The court of appeals stated that “entry” of an order granting a motion to suppress takes place when the order is reduced to writing and filed. Because the state’s notice of appeal was not filed within fourteen days after the 3/22/10 written order, it was untimely and the appeal was dismissed.
There’s nothing illogical about the opinion in Oates, but it creates some tricky practical problems for prosecutors. Remember that not all rulings on motions to suppress are reduced to writing. So if a judge orally grants a motion to suppress, and the state waits around for a written order but the judge elects not to file one, the state may inadvertently allow the time for appeal to expire. Alternatively, if a judge orally grants a motion to suppress, and the state files a notice of appeal but the judge later enters a written order, the state’s notice of appeal will be rendered invalid. (The state could presumably file another one.) Asking the judge whether he or she plans to enter a written order may help to avoid this dilemma.
The court’s opinion appears to suggest that it would have been proper for the state to give oral notice of appeal after the trial judge announced his ruling in court. If that were feasible, it would be another way to avoid the dilemma described above. But (1) Rule 4(a) refers to oral notice of appeal “at trial,” while appealable suppression orders are generally issued at motions hearings, so I’m not sure about the propriety of an oral notice of appeal in this context. (I’ve never researched that issue; perhaps it isn’t as doubtful as it seems.) In any event, (2) a prosecutor who loses a suppression hearing will normally want to consult with his or her supervisor — and perhaps the Attorney General’s office — before deciding whether or not to appeal, making an immediate oral notice of appeal an unlikely event. Finally, (3) appeals by the state require a “certificate by the prosecutor” to the effect that the appeal is not for the purpose of delay. G.S. 15A-979. I’m not sure that an oral pronouncement regarding an appeal would satisfy that mandate.
Anyhow, prosecutors, be alert to Oates when it comes to notices of appeal. This isn’t federal court, where premature notices of appeal are generally deemed timely. If you file too early, your appeal may be dismissed by the court of appeals.
The court of appeals issued three opinions on Tuesday involving satellite-based monitoring (SBM) of sex offenders. In all three, offenders challenged trial court determinations that they had to enroll in SBM. As a threshold matter in each case the court of appeals considered whether the offender’s oral notice of appeal of the SBM determination was sufficient to bring the matter within the jurisdiction of the appellate division. In all three cases it wasn’t, but what the court did from there wasn’t the same in every case.
Before getting into the details I should say a word about appeals of SBM determinations more generally. The statutes governing SBM determinations (G.S. 14-208.40 through –208.45, especially G.S. 14-208.40A and -208.40B) do not clearly set out a right to appeal a trial court order to enroll in SBM. It wasn’t until State v. Singleton (N.C. Ct. App., 5 Jan 2010)—decided over a year and a half after the court of appeals issued its first SBM decision in State v. Williams, 190 N.C. App. 173 (2008)—that the court explicitly addressed the jurisdictional basis for SBM appeals. In Singleton, the court concluded that SBM determinations are a final judgment in a civil (not criminal) action, appealable under G.S. 7A-27(b) (“From any final judgment of a superior court . . . appeal lies of right to the Court of Appeals.”).
Then, earlier this year in State v. Brooks (N.C. Ct. App., May 18, 2010), the court concluded that under the Rules of Appellate Procedure, offenders appealing SBM orders must, as in any other civil matter, give written notice of appeal as required by Rule 3(a): “by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties.” Oral notice—sufficient in criminal actions under Rule 4(a)(1)—was deemed insufficient to confer jurisdiction on the appellate court in a civil matter such as this. The court nonetheless decided in Brooks to treat the offender’s brief as a petition for writ of certiorari and heard the appeal.
That brings us to Tuesday. In each case the offender gave oral notice of appeal at the conclusion of the SBM determination hearing. In State v. Oxendine, the court noted the insufficiency of the oral notice but decided on its own motion, “in the interest of justice,” to treat defendant’s brief as a petition for certiorari and to address the merits of his appeal. Likewise in State v. Clayton, the court noted the lack of written notice of appeal, but then granted the defendant’s request to treat his brief as a cert petition. Doing so, the court noted that State v. Bare (the first case in which the court declared SBM to be civil in nature and not punishment, decided June 16, 2009, and discussed here), Singleton, and Brooks were all decided after Clayton noticed his appeal (on March 5, 2009), and so he didn’t have any indication at that time that oral notice under Rule 4(a)(1) was improper.
In State v. Inman, though, the court dismissed the defendant’s appeal based on the lack of written notice of appeal and declined to treat the appeal as a petition for writ of cert because the brief didn’t “contain the requisite documentation to meet the requirements set forth by our Appellate Rules for consideration of a writ of certiorari.” Judge Stroud dissented, noting that the court had “previously considered purported appeals as petitions for certiorari in other cases.” (Just like Mr. Clayton, Inman gave his oral notice of appeal in March of 2009—well before Bare, Singleton, and Brooks were decided.) The dissent is a Pyrrhic victory for the defendant, though, as Judge Stroud went on to say that she would have affirmed the trial court’s order requiring lifetime SBM. The defendant abandoned his argument that that the trial court had insufficient evidence to show that he committed an aggravated offense, instead choosing to focus on constitutional arguments. And so the issue of whether Inman’s indecent liberties conviction could ever be an aggravated offense requiring lifetime SBM—which it clearly cannot be under the elements-based test set out in State v. Davison (discussed here)—was not before the court.
Going forward, defense lawyers handling SBM determinations should be sure to note their appeals in writing as required by Rule 3(a) of the Rules of Appellate Procedure.
[As an aside, the court’s summary of the facts in Inman indicated that the defendant received five consecutive 60-month probationary sentences. “[I]n other words,” the court summarized, “defendant received a total of 300 months of supervised probation.” Looking at the record (p. 36-47), it’s not clear to me that’s what the trial court ordered, but suffice it to say: periods of probation cannot be stacked. G.S. 15A-1346(a).]