Orders for Arrest after Indictment

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After a grand jury returns a true bill of indictment, should an order for arrest (OFA) issue as a matter of course? Looking at the OFA form, you might think so: it has eight check boxes, each of which provides a possible basis for the issuance of an OFA, such as a defendant’s failure to appear, or the filing of a probation revocation report. The third check box on the form says simply, “TRUE BILL OF INDICTMENT [G.S. 15A-305(b)(1)] a Grand Jury has returned a true bill of indictment against the defendant, a copy of which is attached.”

But looking at the cited provision, G.S. 15A-305(b)(1), it is apparent that an OFA should not issue as a matter of course. That subsection provides that an OFA may issue when “[a] grand jury has returned a true bill of indictment against a defendant who is not in custody and who has not been released from custody pursuant to . . . [b]ail.” (emphasis supplied). Obviously, every defendant who has previously been charged in an executed arrest warrant or a magistrate’s order will either be “in custody” or will have been “released from custody pursuant to . . . [b]ail.” Thus, G.S. 15A-305(b)(1) provides a basis for issuing an OFA only for defendants who are directly indicted, i.e., who have not previously been charged, and for defendants who have been charged in an arrest warrant but not yet arrested. (An OFA is probably superfluous in the latter case, but it doesn’t do any harm.)

That rule makes perfect sense. Defendants who have previously been arrested and charged have already appeared before a magistrate and have already had bond set. Providing such defendants with notice of the indictment under G.S. 15A-630 is all that is required. There’s no need to re-arrest such defendants. In fact, if a defendant was previously arrested and charged, posted bond, and was released, rearresting the defendant is unfair, because the magistrate may impose a new bond, thereby requiring the defendant to pay a bondsman a second time for what is really a single set of charges. (I tend to think that the magistrate shouldn’t impose a new bond, if the charges in the indictment are the same as the charges in the arrest warrant or the magistrate’s order, but that’s a separate question, and as a matter of practice, my sense is that many magistrates do impose a new bond.)

I know that in some districts, an OFA issues as a matter of course upon the return of an indictment. If folks in those districts think I’m missing an important consideration, please post a comment or let me know by email.

5 comments on “Orders for Arrest after Indictment

  1. how long do they have to indite a person

  2. Why would a person be indicted after having already been charged by a magistrate? Is it merely a test region for DAs?

  3. could someone please answer my question?
    I was arrested on 09/10/2009 for 25 felony counts of possesion ,manufacturing,and sell and delivery of heroin.
    I posted bond that evening and I have made all my court appearances
    thus far.
    I have yet to be indicted.
    how long does the state have to indict me and give me a new court date in superior court?
    it has been over a year and no one seems to be able to give me an asnswer to my question?
    someone please help,
    my email addres is thetinknocker@gmail.com
    thank you, Doug

  4. I have been indicated & have now been living out of state for amonth What do I do now Will they extrdite me Do I turn my self in to local department??? I told investigaters that I ws leaving & was told OK I have been charged with Georgias controled substance act trafficing meth & 3 counts of possession of substence to manufacture a schedule II controlled substance 1O people also have these charges in same case I was told by a friend to look at news & found out that Im in newspapers & on the news for last 6 days as wanted being the last one not in custody PLEASE Reply I need answers (I was the room mate & inoccent) THANK YOU!

  5. I am doing research on Lesley Eugene Warren. I came across the website above. I wanted to ask how do I get a copy of indictments in the year of 1990?

    “The police have an interest . . . in investigating new or additional crimes . . . [in which they may be seeking evidence on] individuals already under indictment. . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Maine v. Moulton, 474 U.S. 159, 179-80, 88 L. Ed. 2d 481, 498 (1985).”

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