Trial de Novo and Federal Sentencing in North Carolina

North Carolina, like some states, has a two-tiered criminal system. Lower level cases, including infractions, almost all misdemeanors and most Class H & I felonies – can be resolved in District Court, which is the lower of two levels.

If a person wants to have a trial on a misdemeanor or an infraction, that trial will almost always occur first in District Court (unless the case has been indicted), and in that case the person will appear before a judge for arraignment and a trial as part of what’s known as a Bench Trial.

Felonies cannot be tried by judge in North Carolina. If a person wishes to resolve a felony in District Court, the person can do so, but must plead guilty. There may be many reasons to plead guilty to a felony in District Court, rather than demand a jury trial in Superior Court.

If the person has a trial in District Court on a misdemeanor, or enters a plea to a misdemeanor, and changes his or her mind, the person can appeal the case. That appeal can be entered orally in court by the person or his or her attorney.

Or the matter may be appealed in writing by filling out a form or submitting a notice to the Clerk of Court within 10 calendar days of judgment being imposed.

Upon an appeal, the District Court Judge has a limited opportunity (described elsewhere on this blog) to impose a new bond – called an Appeal Bond – designed to ensure the person is not a danger to the community or and that the person appears for his or her Superior Court court dates.

If the case is sent to Superior Court, what happens to the judgment?

The judgment is set aside. It is a nullity. The case returns to “pending” status and remains that way until one of several things happens in Superior Court.

  1. The person is found guilty or not-guilty by a Superior Court Jury
  2. The person decides to withdraw the appeal and remand the case from Superior Court back to District Court, which in DWI cases requires a new sentencing hearing.
  3. The person decides to plead guilty in Superior Court, and is sentenced in Superior Court by a judge.
  4. The State dismisses the case in Superior Court.

How does an appeal de novo affect a person for other purposes?

Licensing agencies – such as nursing boards, medical boards, state bars – will deal with the matter according to their own internal rules. Their internal administrative rules may treat the underlying conduct as punishable by suspension or revocation of a license.

The DMV will not treat a de novo appeal any differently than the Court system. In other words, the DMV will not regard the underlying District Court conviction as a conviction, and will await the outcome of the Superior Court case.

If you’re being sentenced in other states, those states should not count a District Court conviction that has been appealed as a criminal conviction. It should be regarded as a nullity.

However, if you are being sentenced by the Federal Government, the United States Court of Appeals for the Fourth Circuit in U.S. v. Martin, 378 F.3d 353 (2004) held that a District Court judgment that has been properly appealed can be used against a defendant sentenced in Federal District Court under the United States Sentencing Guidelines.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.