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Information about Rule 7 Discretionary Appeal
Use the discretionary notice of appeal form if you are appealing a final decision from a state trial court in: (1) a post-conviction review proceeding; (2) a proceeding involving a collateral challenge to a conviction or sentence; (3) a sentence modification or suspension proceeding; (4) an imposition of sentence proceeding; (5) a parole revocation proceeding; (6) a probation revocation proceeding; or (7) a landlord/tenant action or possessory action filed under RSA Chapter 540.
Do not use this form to file an interlocutory appeal.
Do not use this form to appeal a decision of an administrative agency, such as the workers’ compensation appeals board, or a decision of a court committee, such as the Committee on Professional Conduct.
Why the Appeal is Called Discretionary
The Supreme Court is not required to accept a Rule 7 Discretionary Appeal even if it is filed on time and all of the filing requirements have been met. It may simply decline the appeal or it may summarily dispose of the case without briefing or oral argument. For this reason, it is important that you prepare the notice of appeal carefully. The notice of appeal form has been designed to give you the opportunity to explain to the court why it should accept your appeal. The court will review the notice of appeal form and your attachments and will decide whether it believes the case or a part of the case should be accepted for further review.
Determine the Deadline for Filing the Discretionary
Notice of Appeal Form
It is important to file your notice of appeal on time. The deadline for filing a discretionary notice of appeal is 30 days from the date on the trial court clerk’s written notice of a “decision on the merits.” Motions to extend the deadline for filing an appeal will be granted only in exceptional circumstances.
Review Supreme Court Rule 7(1)(B) and (C) carefully so that you understand how the deadline is determined. A timely filed post-trial motion, such as a motion for reconsideration of the trial court’s decision, stays the running of the appeal period. An untimely filed post-trial motion or a successive post-trial motion does not stay the appeal period.
Filing means receipt by the clerk of court. You may mail or deliver your appeal to the clerk of court. An appeal will be considered timely if the clerk receives it by the appeal deadline or if it is postmarked at least 2 days prior to the deadline. See Rule 26(1).
If you are attempting to appeal a trial court decision but the deadline for filing an appeal has passed, you must file a motion for late entry with the notice of appeal form. Motions for late entry will be granted only in exceptional circumstances.
Completing the Discretionary Notice of Appeal
Form
Complete all sections of the form. Do not use small type. (Letters cannot be smaller than size 12 font.) If a section is not applicable to your appeal, write “not applicable.”
The following are instructions for completing certain sections of the form:
Section 2 asks for the name of the judge or judges who issued the decision. List only the judges who issued an order or orders that you are appealing. It is not necessary to list a judge who may have ruled on a motion unless you are appealing the judge’s ruling on the motion.
Section 6 requests the date of the clerk’s notice of decision or sentencing and the date of the clerk’s notice of decision on a post-trial motion, if any. You are also required to attach to the form a copy of the trial court decision that you are appealing and a copy of the clerk’s notice of this decision. If a motion for reconsideration was filed, attach a copy of the trial court’s ruling on the motion and the trial court clerk’s notice of the ruling.
Section 9 relates to requests for confidentiality. Complete this section if you believe that the notice of appeal or any other documents should be kept confidential. You should review Supreme Court Rule 12 to determine if you are also required to file a motion to seal documents that you believe should be confidential.
Section 11 requests information about the possible disqualification of a justice. If you believe that a Supreme Court justice is disqualified from your case, you must file a motion for recusal. Review Supreme Court Rule 21A.
S
Section 13 requires that you prepare a description of the case on a separate sheet(s) of paper and attach it to the notice of appeal form. In the attachment, describe the nature of the case and indicate what the result was in the trial court. The attachment is limited to two (2) double-spaced pages.
Section 14 requires that you prepare another attachment listing the issues that you intend to raise on appeal. This section gives you an opportunity to explain to the court why it should accept your appeal. Before you begin, review section 14 of the notice of appeal form, which describes the criteria that the Supreme Court uses to decide whether to accept a case. Then prepare a list of the issues that you intend to raise. List each issue in a separately numbered paragraph, and for each issue: (a) state the issue; (b) explain why, considering the acceptance criteria listed on the form, the court should accept the issue; and (c) if you intend to argue that the evidence was insufficient to support the judge’s or jury’s decision, explain why the evidence was insufficient as a matter of law. This attachment is limited to eight (8) double-spaced pages.
Section 15 requires you to attach to your notice of appeal thefollowing documents in order: (1) a copy of the trial court decision or order that you are appealing; (2) a copy of the trial court clerk’s notice of the decision; (3) if a timely post-trial motion, such as a motion for reconsideration, was filed in the trial court, a copy of the trial court’s decision on the motion; and (4) a copy of the clerk’s notice of decision on the post-trial motion. Do not attach any other documents to the notice of appeal. You may submit other documents to the court if you believe that they would assist the court in understanding your case, but any documents other than those listed above must be included in a separate Appendix. The Appendix should have a cover and must include a table of contents; the pages of the Appendix must be sequentially numbered and the Appendix must be bound.
Section 16 requires you to certify that the issues listed in Section 14 were presented in the trial court and were properly preserved for appellate review. It also requires you to certify that you have sent the required number of copies of the notice of appeal form and attachments to the other parties and the clerk of the trial court.
Transcript Order Form (page 4)
Review Supreme Court Rule 15. Complete the form and calculate the total deposit required
for the transcript that you are requesting.
If you request a transcript of the entire proceeding, calculate the
deposit based on the length of the entire proceeding. If you request a transcript of portions of a proceeding, you
must calculate separately the deposit required for each portion and then
calculate the total deposit required.
For example, if you request a transcript of a motion to suppress
hearing that lasted ½ hour and a transcript of a hearing on a motion for
reconsideration that lasted ½ hour, the required deposit would be $350
($175 for the first ½ hour hearing and $175 for the second ½ hour
hearing). You may not divide the testimony of a witness; if you request
any part of a witness’s testimony, you will be required to pay for a
transcript of the complete testimony of the witness.
DO NOT SEND THE DEPOSIT WITH YOUR NOTICE OF APPEAL.
If your appeal is accepted for further review, you will receive an
order from the Supreme Court advising you where to send your payment and
of the deadline for payment of the deposit.
Pre-filing Checklist
After completing the discretionary notice of appeal form, review this checklist before filing:
_____ Attach to the notice of appeal form the following documents:
____ a copy of the trial court decision that you are appealing;
_____ a copy of the trial court clerk’s notice of the decision;
_____ a copy of the trial court’s decision on any post-trial motion;
_____ a copy of the trial court clerk’s notice of decision on a post-trial motion;
_____ Section 13 description of the case and result (limit 2 pages)
_____ Section 14 list of issues to be raised on appeal and an explanation of why the court should accept the appeal (limit 8 pages).
DO NOT ATTACH OTHER DOCUMENTS. Any other documents must be included in a separate Appendix. See instructions below.
_____ After attaching the required documents, number all pages of the form and attachments sequentially. The entire document is referred to as your notice of appeal.
_____ Determine the number of copies of the notice of appeal (the form and attachments) that you need. You must file the original and twelve (12) copies with the clerk of the Supreme Court, send two (2) copies, or when a master is involved, three (3) copies to the clerk of the trial court, and send one (1) copy to each party or the party’s counsel. Be sure to keep a copy of the notice of appeal for your records.
_____ Copy the notice of appeal on good quality, non-clinging paper, 8 1/2” x 11”.
_____ Bind the notice of appeal on the left side in booklet form.
_____ Prepare a separate Appendix of any other documents that you wish to submit to the court for review. The Appendix should have a cover and should include a table of contents. The pages of the Appendix must be consecutively numbered. It should be copied on good quality, non-clinging 8 ½” x 11” paper and bound on the left side in booklet form. You must file eight (8) copies of the Appendix.
Filing the Discretionary Notice of Appeal Package
File the original discretionary notice of appeal (the form with the attachments), and twelve (12) copies of the discretionary notice of appeal with the Clerk of the Supreme Court by the appeal deadline. You may mail the package or deliver it to the court. If you file an appendix, eight (8) copies must be filed.
You must send
with your notice of appeal package a payment of $145 (the filing
fee of $125 and a $20 legislative surcharge).
Checks should be made payable to the "State of New
Hampshire." If you
are unable to pay the filing fee for financial reasons, you must file a
motion for waiver of filing fee and an affidavit of assets and
liabilities. The court will
review the motion and will determine whether to waive the fee.
Send or deliver a copy of the notice of appeal and appendix to the other parties to the case, or their counsel, and send or deliver to the trial court two (2) or, when a master was involved in the case, three (3) copies of the notice of appeal and appendix.
Requesting the Appointment of An Attorney
If you are indigent and you wish to request that counsel be appointed to represent you on appeal, you or your counsel should file a financial affidavit and application for court appointed counsel (OCC Form 4) with the notice of appeal.
Who To Contact If You Have A Question
If you have a question about how to complete the discretionary notice of appeal form, contact the clerk’s office:
Clerk of
Court
New
Hampshire Supreme Court
Concord, New
Hampshire 03301
Telephone:
(603) 271-2646
(2/04)
