First Steps in an Appeal: Notice of Appeal

by | Mar 13, 2021

One of the initial steps that must be completed correctly before an appeal can truly begin is filing a notice of appeal with the correct court. Attention to both detail and procedure during this step in the appeal is of the utmost importance.

North Carolina Rule of Appellate Procedure Rule 3 mandates the notice of appeal be filed “with the clerk of superior court.” Failure to adhere to this rule will result in dismissal of the appeal, only reviewable by petition for writ of certiorari. In North Carolina, “’our Courts have frequently observed that a writ of certiorari is an extraordinary remedial writ.’” Ehrenhaus v. Baker, 243 N.C. App. 17, 32, 776 S.E.2d 699, 709 (2015) (quoting Branch Banking and Trust Co. v. Peacock Farm, Inc.,     N.C. App.    ,    , 772 S.E.2d 495, 500 (2015)).

Next, consider North Carolina Rule of Appellate Procedure Rule 4, which states that a party to a criminal case may appeal orally at trial or by filing a notice of appeal with the Clerk of the Superior Court. In contrast, under North Carolina Rule of Appellate Procedure Rule 3, governing appeals in civil cases, oral notice of appeal is not allowed.  

Even if a party looking to appeal recognizes how and where their notice of appeal must be filed, there are many different issues of timing, content, and service, to name a few considerations that must be strictly followed for a viable appeal. Attorneys new to the appellate process may not be aware of each element of those requirements.  

To aid in the understanding of the appellate process, the Law Office of Mark L. Hayes has composed an informative, one-hour Continuing Legal Education video, approved by the North Carolina State Bar Continuing Legal Education department, titled “Appeals In North Carolina: First Steps.” The video presentation, a link to which may be found below, grants an overview of the appeals process in North Carolina, useful for both practicing attorneys and non-attorneys who simply want to understand the process. The CLE explores how to determine whether a case is ripe for appeal, if proper notice has been given, and how to obtain the transcript for appeal. Within each of these three crucial categories, Mr. Hayes discusses special considerations and details, which could derail the appeal if they are not handled properly.  

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