Many of our posts since we launched this blog have focused on the importance of paying attention to and timely following the Rules of Appellate Procedure, lest you find yourself in a situation where your appeal is subject to dismissal on a rule technicality. While this practice is still of tantamount importance, it should be noted that not all failures to follow the appellate rules to a tee will result in a dismissal of your appeal and the Rules do contain exceptions for certain situations.
One of these exceptions is on display in the Court of Appeals’ decision released today in State v. Linenberger, No. COA11-1098. In that case, the criminal defendant was ordered to enroll in a satellite based monitoring system for the rest of his life. Upon announcement of this ruling, the defendant gave oral notice of appeal in open court.
The Court of Appeals noted that oral notice of appeal of this ruling was insufficient to confer jurisdiction on the court of appeals pursuant to North Carolina Rule of Appellate Procedure 4(a)(1), and that instead the defendant must give written notice of appeal pursuant to North Carolina Rule of Appellate Procedure 3(a). The Court noted that defendant’s failure to follow Rule 3(a) meant that his appeal was not properly before the Court and subject to dismissal.
However, defendant had recognized that he failed to properly notice his appeal and filed a petition for a writ of certiorari with the Court seeking review of the satellite based monitoring order. North Carolina Rule of Appellate Procedure 21(a)(1) allows for a writ of certiorari to be issued to permit reviews of orders and judgments of trial courts when the right to prosecute an appeal has been lost by failure to take timely action. The Court of Appeals noted that it has granted certiorari on multiple occasions where the defendant failed to properly appeal pursuant to Rule 3(a). The Court then used its discretion to grant certiorari to hear Lineberger’s appeal in this case, despite his failure to appropriately file a written notice of appeal.
While the Court subsequently affirmed the trial court’s ruling on the satellite based monitoring, it did so on the merits of the case and not on the technicalities related to an appellate rules violation. Thus, the take away point is that while the Rules of Appellate Procedure are typically strictly applied and an appellate practitioner should be hyper-aware of what needs to be done to avoid dismissal of an appeal on rules violations, the Rules are not so draconian that there are not avenues in which an appellant may still get his/her appeal heard on the merits even in the event of certain technical violations. So if you find yourself in the unfortunate situation as appellate counsel where there appears to have been a failure to follow a certain rule, don’t automatically assume that means the end of the appeal. Instead, follow the example of appellate counsel in Lineberger and look for ways to still get your appeal before the Court.