What is Post Conviction Relief?

A gavel and the United States Supreme Court building - post conviction relief concept

Being found guilty of a criminal offense can have a significant impact on your life and livelihood. However, a conviction in a criminal case doesn’t always mean the end of the road — in some situations, post-conviction relief may be available. This is the process by which a person can seek to overturn a conviction by presenting new evidence, raising constitutional issues, or arguing errors were made at trial that warrant a review of the case. There are different types of post-conviction relief that may be used in North Carolina, depending on the facts of your case.

The different types of post-conviction relief available under North Carolina law can include the following:


One of the most common types of post-conviction relief is an appeal. Specifically, an appeal is not a new trial and does not determine whether you are guilty. The process provides the opportunity to correct specific errors or Constitutional violations that may have occurred at trial. Although an appellate court does not hear new evidence, it can review the trial court proceedings to determine whether the law was applied correctly.

The following are several reasons a trial court decision may be appealed in North Carolina:

  • There was insufficient evidence to support a conviction
  • The trial court made a procedural error when deciding a pretrial motion, giving jury instructions, or by denying a motion for relief
  • The criminal pleading did not clearly specify the elements of the crime
  • The conviction violates the state or federal Constitution
  • The law under which the conviction was made is unconstitutional
  • The conduct that resulted in prosecution is Constitutionally protected

Importantly, there is only a limited amount of time to file an appeal. There are also certain procedures that must be followed throughout the appellate process. While most appeals are decided based on the record and brief provided, oral argument may sometimes be held.

Motion for Appropriate Relief

Before submitting an appeal, you might consider filing a Motion for Appropriate Relief — this is a motion on the original cause, not a new legal proceeding. There are two types of Motions for Appropriate Relief in North Carolina. The first option allows a criminal defendant to file this type of motion for any error that was made before or during the criminal trial within 10 days after the judgment was entered. This option is typically used to bring an error of law to the attention of the trial judge without going through the appellate process.

The second type of Motion for Appropriate Relief may be filed any time after the judgment has been entered based on a serious Constitutional violation. The grounds upon which this post-conviction relief motion may be filed are set forth by statute. These grounds can include lack of subject matter jurisdiction by the trial court, failure to voluntarily enter a guilty plea, or defective indictment claim. This type of motion can also be filed if your conviction violated the state or federal Constitution, or you did not knowingly waive your right to representation by counsel.

Petition for Habeas Corpus

If you have been imprisoned, you can file a writ of habeas corpus to challenge your detention. While this writ requires that you be brought before the court, it is not a remedy in itself. Rather, it is a procedural method that can be used to guarantee against unlawful detention. Under North Carolina’s habeas corpus statute, if no legal cause is found that justifies your imprisonment, you must be released.


Another form of post-conviction relief is expungement. This is the legal process by which you can request to have information about a non-violent misdemeanor or felony conviction removed from the state databases. To qualify for an expungement in North Carolina, you must meet the required waiting period (five years for a misdemeanor and 10 years for a felony conviction) and pay your court-ordered costs. In addition, you must not be on parole or probation, have no warrant out for your arrest, and have no pending criminal charges.

Contact an Experienced North Carolina Post Conviction Attorney

Obtaining post-conviction relief can be complicated. It requires the assistance of a skillful attorney who understands the nuanced procedures involved. The Johnston County post-conviction relief attorneys at Reece & Reece, Attorneys at Law provide effective counsel for a variety of post-conviction relief matters. Call (919) 300-1249 to schedule a consultation and learn how we can assist you.

Categories: Appeals