Yesterday, the Court of Appeals published an opinion serving as a reminder that attorneys must always be mindful of preserving their trial court arguments for appeal. In State v. Walker, the Court addressed an appeal from judgments convicting the Defendant of three counts of assault with a deadly weapon with intent to kill inflicting serious injury (acronymed “AWDWWIKISI” in the opinion) and one count of attempted first degree murder. … Continue Reading

A case with a history of appellate rules issues, see here, can now add a few more to its tally.  In State v. Coxton the Court of Appeals originally dismissed a criminal defendant’s appeal for failure to give proper notice of appeal and further denied the defendant’s petition for writ of certiorari because it was filed more than eight months after the judgment being appealed from without any explanation for the delay.  … Continue Reading

In recent weeks we’ve had a number of posts that demonstrate the inherent authority and broad power of our appellate courts. See here and here. Another example of that power was on display in a criminal case decided last week by the Court of Appeals. In State v. Sandy, the Court invoked Rule 2 of the North Carolina Rules of Appellate Procedure to consider material outside the Record on Appeal in ruling on the appellants’ (criminal defendants who had been convicted in the trial court) motions for appropriate relief (MARs) that were filed in the Court of Appeals.… Continue Reading

I can’t pass up the opportunity to blog about an appellate case titled Don’t Do It, [Sic] Empire, LLC v. Tenntex, COA 15-938 (Mar. 1, 2016) ([sic] in original)—especially when that case involves a failure to preserve an issue for appellate review under Appellate Rule 10. I also feel compelled to write about the Court of Appeals’ published opinion in State v.Continue Reading

Yesterday’s batch of opinions contained an unusual nugget: an entire opinion devoted to arguably the most powerful of all appellate tools, the writ of certiorari. In State v. Biddix,  the Court of Appeals denied a petition for writ of certiorari by concluding that the court was prohibited from invoking certiorari to address an issue on appeal, rather than simply exercising its discretion to deny the petition. … Continue Reading

Last Friday, the Supreme Court of North Carolina issued a number of opinions. One of the most notable was State v. Stubbs. In that case the Court addressed whether the Court of Appeals has subject matter jurisdiction over the State’s appeal from a trial court’s order granting a criminal defendant’s motion for appropriate relief. The disposition of the motion is emphasized because that fact was pertinent to the issue before the Court and ultimately resulted in the Court issuing a separate Order adopting an amendment to Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure.… Continue Reading

While reading through the latest batch of opinions from the North Carolina Court of Appeals, I was struck (again) by how often appellate cases are not decided on the merits but rather on issues of appellate procedure. At least one quarter of the published and unpublished opinions I reviewed had at least one issue that involved error preservation or appellate procedure.… Continue Reading

Is it fair for the government to require a criminal defendant to waive his right to appeal as part of accepting a plea agreement?  Such “appellate waivers” have become quite common over the past several years, but, according to a recent report, DOJ will abandon them starting as early as next week.  Why?

When a defendant accepts a plea agreement, he still often faces a range of possible sentences that can be handed down by the presiding Judge under 18 U.S.C.… Continue Reading

Readers of our blog may be interested in a few nuggets concerning interlocutory appeals that appeared in the slate of opinions that the North Carolina Court of Appeals published on June 17.

1) Interlocutory Appeal of Decision to Suppress Evidence in Criminal Cases.

As one who rarely has occasion to peruse the state’s Criminal Procedure Act, I was intrigued with the application of a criminal interlocutory appeal jurisdiction statute in State v.Continue Reading

Follow the rules. It’s a straightforward concept, but one that can sometimes be inadvertently overlooked. And while we ordinarily blog here about civil appeals, occasionally there is a holding in a criminal appeal that has universal applicability and is beneficial to civil and criminal appellate practitioners alike. Such was the case last week in the Court of Appeals’ Opinion in State v.Continue Reading