When doing criminal defense work, practitioners routinely give oral notice of appeal and rarely use written notices of appeal. This practice is sufficient for most cases but presents a dangerous trap for the unwary when a civil issue arises in a criminal appeal. In North Carolina, criminal defendants who are convicted of certain offenses may be ordered to enroll in satellite-based monitoring (“SBM”). If you are not sure what that is, check out the movie Disturbia.
In May 2010, the North Carolina Court of Appeals released an opinion in State v. Brooks which held that SBM hearings are civil in nature rather than criminal. Instead of being a punishment, SBM is part of a “civil regulatory scheme.” As a result, an oral notice of appeal from a SBM order is insufficient to confer jurisdiction on the Court of Appeals to hear a challenge to the SBM order. In other words, the provision in Appellate Rule 4(a)(1) allowing oral notices of appeal in criminal cases does not apply to SBM hearings. Rather, those hearings fall within Appellate Rule 3’s requirement for a written notice of appeal. Attorneys representing criminal defendants should be aware of this distinction and file a written notice of appeal whenever SBM rulings are involved.
The Court of Appeals has been temporarily granting reprieve to attorneys who missed the news that written notices of appeal are required. In State v. Stokes, released earlier this week, the defendant was convicted of various sex offenses and ordered to enroll in SBM for the rest of his natural life. The defendant failed to file a written notice of appeal but sought review of the issue by petition for writ of certiorari. The Court of Appeals agreed to reach the issue by certiorari because the Stokes SBM order had been entered within three months of the Brooks decision. The Court of Appeals reached a similar result in both State v. Mann and State v. Carter.
Unfortunately, that window of reprieve will probably close quickly. Brooks was released more than a year ago, and the Court of Appeals is less likely to grant certiorari based on oral notices in the future.