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High court opens window, lets common sense in

David Donovan//October 12, 2012

High court opens window, lets common sense in

David Donovan//October 12, 2012

Prosecutors and criminal defense attorneys now have a larger, simpler window in which to file a notice of appeal after the North Carolina Supreme Court clarified what happens when a judge signs a written order weeks or even months after announcing a decision in the courtroom.

The court overturned a unanimous decision of the Court of Appeals holding that an attorney could give oral notice of appeal at the hearing, or written notice within two weeks of the entry of the written order, but not in between the two.

The case involved Sampson County Superior Court Judge Russell J. Lanier Jr.’s decision to suppress evidence seized from a search of the home of Andrew Oates. Lanier announced in court on December 15, 2009 that he would grant the motion to suppress and that the prosecution could file its notice of appeal. The prosecutor said “Yes, Sir,” but did not give oral notice of an appeal. A week later, prosecutors filed written notice of their intentions.

Lanier did not sign a written order granting the motion to suppress until March 18, 2010, and the order was filed with the clerk of court a few days later. Prosecutors did not file any further notices, and the Court of Appeals denied their appeal, holding that they never gave timely notice of it because they didn’t give oral notice at the hearing or file written notice after entry of the order.

The Supreme Court disagreed with the lower court’s interpretation of the “entry” of an order, saying that forcing attorneys to either pipe up immediately or wait around for a written order would “would discourage thoughtful litigation and could lead to absurd results.” Instead, the court held that the window for written notice opens as soon as the judge announces a decision in court and runs until 14 days after entry of a written order—a period that in this case lasted for more than three months.

“Under the holding of the Court of Appeals, a party considering whether to appeal an adverse result would either be required to enter oral notice of appeal at once even if uncertain of the basis of the judge’s decision or the merits of the appeal, or, after considering the wisdom of an appeal and deciding to proceed, be forced to monitor the clerk’s office for an indeterminate period of time while waiting for an order,” Justice Robert H. Edmunds Jr. wrote for the court.

The Court of Appeals based its reasoning on the Supreme Court’s decision in State v. Boone, which defined “entry of judgment” in a civil context. At the time of that decision, the procedures for civil and criminal appeals were almost identical. Now, however, oral notices are allowed only in the criminal context while civil judgments must be reduced to writing.

“While Boone has never been overruled, it has been overtaken by events,” Edmunds wrote.

The eight-page opinion is State v. Oates (Lawyers Weekly No. 12-06-0995). The full text of the decision is available online at


Follow David Donovan
on Twitter @NCLWDonovan


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