What is an Appeal Bond?

Raleigh criminal lawyerLet’s talk about appeal bonds. In North Carolina, most misdemeanors first begin in District Court where, ultimately if the case is not dismissed, a verdict is rendered either by bench trial (by a judge) or a plea.

Because North Carolina criminal District Court lacks a jury, and because the federal constitution guarantees a right to a jury trial any time someone’s liberty is at stake (which includes all misdemeanors in North Carolina), the defendant has an automatic right to appeal the case to Superior Court.

That appeal can happen after a trial, or after a guilty plea. It must be entered in open court, or it can be entered within 10 days of the entry of judgment by giving notice of appeal to the Clerk of Court.

The appeal effectively sets aside the District Court judge’s judgment. The client walks out – or should walk out – of court “not guilty.” The case now heads toward Superior Court unless the client withdraws the appeal within 10 days of giving notice of it.

Ultimately the District Court judgment may end up being the final judgment even in cases that are appealed because many defendants, particularly in Driving While Impaired offenses, remand the case to District Court to accept the original judgment.

When notice of appeal is given, the District Court judge does have an option to set what is called an “Appeal Bond”.

Alyson Grine has a very thorough analysis of appeal bonds at the UNC School of Government’s website.

Under G.S. 7A-290 the “original bail shall stand pending appeal” unless modified and under G.S. 15A-1431(e) the “order of pretrial release remains in effect pending appeal” unless modified.

In other words, the default position is that the bond remains the same. The default position is not that the bond should be increased.

Even so, does the District Court judge have authority (regardless of what 7A-790 and 15A-1431 say) to impose a bond? As Alyson Grine writes the statutes are in conflict. G.S. 15A-534(e)(1) says that a District Court judge may modify the pretrial release order (or bond) any time prior to the noting of the appeal. Once the case is appealed, the District Court’s jurisdiction over pretrial conditions evaporates according to 15A-534(e)(1).

Prosecutors argue that 15A-1431(f1) resolves this issue by indicating that District Court judges have the power to modify bond upon notice of appeal:

Pursuant to subsection (e) of this section, however, the judge may order any appropriate condition of pretrial release, including confinement in a local confinement facility, pending the trial de novo in superior court.

But, arguably, the word used is “judge” and this statute read together with 15A-534 which only allows the District Court judge to modify the bond up to the moment of appeal, means that the judge referred to in 15A-1431(e) and (f1) is a Superior Court judge.

Let’s set this issue aside for the moment and concede for purposes of the argument that prosecutors are right and that the bond may be modified by the District Court judge even after Notice of Appeal has been given (but before the 10 days expire and the case is transferred to Superior Court.)

How can the District Court modify the bond?

First, the District Court Judge may not under any circumstances simply impose an appeal bond as a “matter of policy”.

Let’s be clear: It is illegal and unconstitutional for a judge to impose an appeal bond in, for instance, all appealed DWI cases (as I had a judge recently tell me is his policy).

A judge who does this has violated his oaths to the federal constitution and the state constitution.

A bond may only be set to ensure public safety or to ensure the defendant’s appearance in court. If the defendant has made every single court appearance, and has little or no criminal record, that defendant must not have an appeal bond. If a defendant merely appeals because he wants to exercise his constitutional right to a jury trial – which is all the District Court judge can assume from a Notice of Appeal – the defendant may not be imposed.

A judge who imposes a bond in this instance simply because the defendant has decided to appeal a guilty plea has violated the United States and, possibly, the North Carolina constitutions. See generally North Carolina v. Pearce, 395 U.S. 711 (1969) (due process prohibits judge from increasing sentence on retrial to discourage appeal); see also In re Renfer, 345 N.C. 632 (1997) (Judicial Standards Commission recommended removal of district court judge from office for, among other things, improperly raising defendant’s bond in response to appeal).

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.