Written by attorney Richard E. Samdperil

Criminal Appeals in New Hampshire

This guide covers: (1) appeals to the superior court for a jury trial after conviction by a judge in the district court; (2) appeals to the NH Supreme Court; and (3) appeals to the US Supreme Court. This is for informational purposes only and you should contact a lawyer to discuss preserving your appellate rights.

NH District Court Appeals. If you are scheduled for a trial in a NH district court, your case will be heard by a judge. New Hampshire's district courts no longer conduct jury trials. If you are convicted, you may appeal. However, where you file your appeal depends upon what type of charge you were convicted of. If you were convicted of a class A misdemeanor and received a jail sentence (even if it is a suspended jail sentence), you may appeal to the Superior Court and have a trial in front of a jury. You should make this request in writing at the district court where you had your trial. You must request an appeal on the day of sentencing. Typically, the sentence you received in the district court will be stayed (i.e., not imposed) pending the appeal. However, you may still have to post bail, or follow any other bail conditions set by the district court judge. If you were (1) charged with a class A misdemeanor, convicted of that charge, but did not receive any sort of jail sentence, or (2) convicted of a class B misdemeanor or (3) convicted of a violation level offense, you do not have a right to a jury trial and can only appeal to the New Hampshire Supreme Court.

New Hampshire Supreme Court Appeals. There are strict rules governing appeals to the NH Supreme Court. You must complete the proper Notice of Appeal form, and file it with the Supreme Court within 30 days of the "final disposition." In a criminal case, the final disposition is usually the date the judge imposed his or her sentence. If you are appealing after a trial, the Supreme Court will treat your case as a mandatory appeal. This means that the Court will automatically accept your case for appeal. In criminal cases, most appeals are mandatory appeals. However, just because the Supreme Court accepts your case for appeal does not mean that the judges view your appeal favorably, or that they agree that you were wrongly convicted.

Judges on the New Hampshire Supreme Court. There are five judges on the NH Supreme Court - four associate justices, and one Chief Justice. In New Hampshire, all judges are appointed; they are not elected. Judges are nominated by the Governor and confirmed by the Executive Council. With limited exceptions, the New Hampshire Supreme Court is a court of review. This means that it reviews legal decisions by lower courts. The Supreme Court does not hold trials and will not consider new evidence or evidence that was not presented to the trial court. The Appellate Process in New Hampshire Once a case is accepted for appeal, the NH Supreme Court will order that a transcript of the trial or hearing be prepared. Transcripts typically take 45-60 days to prepare, but may take longer, depending upon the number of days the trial lasted. When the transcripts are completed, the Supreme Court will issue a briefing schedule, instructing the parties to file a legal brief or memorandum by a certain date. The party who is appealing files its brief first. The other party usually has 30-60 additional days to file its brief. Like the Notice of Appeal, there are strict rules governing the filing of Briefs. These rules dictate everything from the page margins and location of staples, to the number of copies to be filed and forwarded to other interested parties. For this reason, it is extremely important that the attorney you hire is knowledgeable about appellate procedure and is experienced practicing before the New Hampshire Supreme Court. After the parties file their briefs or memoranda, the Supreme Court will either consider the case and render a decision, or schedule the case for oral argument. Oral argument may be requested, but the Court does not always grant the request.

Oral Arguments. The Supreme Court may schedule oral argument before the full panel of five judges, or before a panel of three judges (referred to as the 3JX panel). Each side is typically allotted 15 minutes of argument before the full panel, and five minutes of argument before the 3JX panel. The judges frequently ask questions of the lawyers during these arguments. The Court will not make a decision at the end of oral arguments. In most cases the Court will consider the matter and issue a written decision at a later date. A 3JX panel may also refer the case to the full panel and schedule another oral argument before all five judges. Decisions When the Supreme Court has reached its decision, the clerk sends a copy of the decision to all the parties. If the Court believes its decision interprets the law in a new or significant way, it may publish the decision (often titled an Opinion) on the Supreme Court's website and in bound volumes of decisions called the New Hampshire Reports. If the Court reverses or vacates a criminal conviction, the case will be "remanded" (i.e., sent back) to the lower court. A criminal case may be remanded for a new trial, for re-sentencing, or with instructions that the lower court judge hold further hearings or make additional findings. If a case is affirmed, the conviction is final.

Appeals to the United States Supreme Court. If the New Hampshire Supreme Court affirms a criminal conviction, the defendant may file a petition with the United States Supreme Court asking that Court to review the decision of the N.H. Court. A defendant filing a petition for Supreme Court review must claim that his or her rights under federal law were violated. The U.S. Supreme Court does not have to accept these cases, and frequently denies these petitions.

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