Petitions for a writ of certiorari, particularly in criminal cases, are no stranger to this blog.  But this week’s opinions from the Court of Appeals include a case that is worth discussing. State v. Dade concerned North Carolina’s implied-consent offenses such as impaired driving.  If a defendant in such a case files a motion to suppress in the district court, the judge is supposed to “set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether…More

North Carolina’s appellate lawyers enjoyed an hour chock-full of insights from Justice Dietz and Chief Judge Dillon this morning during the NCBA’s annual appellate-practice CLE.  Did you miss it?  Here are some highlights. Motions to Dismiss Appeals Both the Supreme Court and the Court of Appeals are open to motions to dismiss appeals for lack of jurisdiction.  This has implications for appellants and appellees alike.  If an appeal presents an appellate jurisdictional issue, an appellee may wish to move to dismiss the…More

Suppose the Supreme Court of North Carolina jettisoned In re Civil Penalty—the case requiring panels of the Court of Appeals to treat earlier Court of Appeals panel opinions as binding precedent. What system would take its place? This is no mere hypothetical. As my colleague Morgan Reece pointed out last week, at least one Justice on our Supreme Court has expressed an openness to trying something different than our current system of horizonal stare decisis within our intermediate appellate court. As it…More

On March 20, the Supreme Court issued an opinion in In re N.M.W., No. 159PA25, 2026 WL 796105 (N.C. Mar. 20, 2026).  But as many of you know, I’m not here to discuss the holding or outcome of that case.  I want to talk about Justice Berger’s concurrence. Background first.  Readers of this blog will undoubtedly be familiar with In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).  This case stands for the proposition that one panel of the…More

North Carolina appellate practitioners may want to sit down before reading this. Actually, maybe stand up—because you might need to spring into action sooner than you think. The North Carolina Supreme Court appears to be running a tighter schedule for briefing and calendaring cases for oral argument. In some cases, the Court has issued oral argument calendars before briefing has concluded—with at least one advocate relaying that oral argument in a case was scheduled before the first brief was filed. This could…More

Sometimes you fall headlong into a chorus you thought you knew by heart—only to discover the bridge is where all the action is. For appellate practitioners, that action seems to be happening more and more in orders issued by the North Carolina Court of Appeals. The latest big order highlights how trial attorneys in criminal cases giving oral notices of appeal before sentencing can create problems under the Court of Appeals’ discretionary certiorari power. The result, to borrow from Avril…More

As I forecasted two weeks ago, the State v. Hardaway case could present a clean opportunity for the North Carolina Court of Appeals to hold its first-ever en banc (re)hearing. Yesterday, we took a step closer to having that become a reality, as the defendant has now moved for rehearing en banc and for a stay of the mandate. The case “cries out” for en banc rehearing, says his counsel, former NC Supreme Court Justice Sam J. “Jimmy” Ervin, IV.…More

Yesterday, I posted on the State v. Hardaway case and the use of a “concurrence dubitante” by Judge Hampson to flag his concerns with the binding holding of the earlier-decided State v. Jenkins case. Having thought a bit more about the cases, I think this dispute has as good a chance as any to lead to our first en banc sitting of the North Carolina Court of Appeals. Here’s why. Take a close look at the timing of these two appeals.…More

In 1904, North Carolina Supreme Court Justice Robert M. Douglas wrote a separate opinion in a case called Westbrooks v. Wilson, 135 N.C. 400, expressing some reservations about the majority’s opinion.  He signed his opinion “Douglas, J. (dubitante),” using the Latin word for “doubting.” No North Carolina judge has entered a “dubitante” opinion since.  Until now. A panel of the North Carolina Court of Appeals issued three separate opinions in State v. Hardaway this week—a per curiam opinion, a concurrence by Chief…More

This blog has spent a lot of ink discussing file stamps.  Indeed, two Halloweens ago we devoted an entire blog post to the ghoulish topic of missing file stamps and sua sponte dismissals. I’m happy to report that file-stamp dismissals appear to be dying down.  I believe there are several reasons why. My hope is that appellate practitioners are being diligent on including file-stamped documents in their records on appeal.  Also, the conversion to electronic filing is eliminating the illegible stamps that…More