In a pair of recent cases, the North Carolina Court of Appeals addressed jurisdictional issues related to the prosecution of misdemeanors and the adjudication of infractions in superior court. In State v. Gibbon, ___ N.C. App. ___, 926 S.E.2d 779 (2026), temp. stay allowed, ___ N.C. ___ (2026), the court of appeals determined that the State was not required to engage in additional fact-finding following the return of a presentment; a review of the case file and preparation of the indictment was sufficient. In State v. Myers, No. COA25-631,___ N.C. App. ___ (May 20, 2026), the court of appeals held that the superior court lacked jurisdiction to try infractions that were not lesser-included violations of the criminal offenses for which the defendant was indicted. This post considers those two decisions and their broader context.
Gibbon and presentments.
In North Carolina, any trial of a criminal action involving a felony charge must take place in superior court. In contrast, a trial on a misdemeanor charge that is not transactionally related to a charged felony must initially be held in district court. An exception to the latter rule is that a defendant may be indicted for a misdemeanor offense following the grand jury’s return of a presentment; in that case, any ensuing trial must be in superior court. G.S. 7A-271(a)(2).
Initiation of charges by presentment was a procedure rarely used until about a decade ago. That changed following the court of appeals’ determination in State v. Turner, 250 N.C. App. 776 (2016) (discussed here), that the issuance of a citation and a magistrate’s order in an impaired driving case did not toll the two-year statute of limitations created by G.S. 15-1. Turner ultimately was reversed, see 371 N.C. 427 (2018) (discussed here), and G.S. 15-1 amended but not before the uptick in presentments, which ensured that the statute of limitations was tolled during a period in which tolling pursuant to misdemeanor pleadings was in question. Today, prosecutors use presentments to avoid having to try certain misdemeanor cases twice. Avoiding a district court trial may be particularly desirable for the State in politically sensitive or complex cases or in cases in which the State expects the matter to be appealed to superior court for a jury trial.
What is a presentment? Presentments are a mode of prosecution recognized by the Article I, § 22 of the North Carolina Constitution, which provides that “[e]xcept in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment.” More specifically, a presentment is a “written accusation by a grand jury, made on its own motion and filed with the superior court” charging a person with a criminal offense. G.S. 15A-641(c). A presentment does not itself institute criminal proceedings. See State v. Thomas, 236 N.C. 454, 458 (1952) (noting that since the time of legislation passed in 1797 “a presentment is regarding as nothing more than an instruction by the grand jury to the public prosecuting attorney for framing a bill of indictment for submission to them”). Instead, the district attorney is required “to investigate the factual background” of every presentment and to “submit bills of indictment to the grand jury” relating to matters in the presentment when appropriate. G.S. 15A-641(c). While G.S. 15A-641(c) appears to contemplate a process by which the grand jury initiates its own investigation, G.S. 15A-628(a)(4) acknowledges the potential role of the prosecutor as it authorizes a grand jury to issue a presentment following an investigation into criminal conduct initiated “upon the request of . . . the prosecutor.” Not surprisingly, presentments today typically are returned following a submission of a draft presentment by the prosecutor. Jeff Welty explored the history of presentments in this earlier post.
Presentment and indictment may not be returned simultaneously. The rising use of presentments over the last decade has led to increased scrutiny of the rules governing their use. In State v. Baker, 263 N.C. App. 221 (2018) (discussed here), the court held that the simultaneous submission and return of a presentment and indictment in a misdemeanor case rendered both the presentment and indictment invalid and failed to confer jurisdiction on the superior court. The Baker Court reasoned that G.S. 15A-641(c) required that there be an investigation by the prosecutor after the return of the presentment. In addition to basing its holding on the plain language of the statute, Baker concluded that a presentment returned simultaneously with an indictment would not comport with the common law requirement that a presentment be based on the grand jury’s own knowledge or observation or upon information from others. Instead, in the case of simultaneous submission and return of a presentment and indictment, a presentment would be issued by “direct endorsement of the prosecutor.” Id. at 228.
Baker did not address what a post-presentment investigation must entail. In circumstances where the State already had completed a thorough investigation before requesting a presentment from the grand jury, prosecutors were left to wonder whether reviewing the case file and preparing an indictment following the return of a presentment were sufficient or whether additional fact-gathering was required.
The court of appeals addressed that issue earlier this year in Gibbon.
Gibbon: Review of case file following return of presentment is sufficient investigation. In Gibbon, the defendant was charged with misdemeanor death by vehicle after he ran his Corvette off a winding mountain road and into a tree while speeding, killing the front-seat passenger. On August 28, 2023, ten months after the crash, a grand jury returned a presentment setting forth this charge, a violation of G.S. 20-141.4(a2). Forty-one days later, the grand jury returned an indictment charging the defendant with misdemeanor death by vehicle. In the interim period between the return of the presentment and return of the indictment, the prosecutor reviewed the file to prepare the indictment but did not seek new evidence in the case.
The defendant moved to dismiss the charges on the basis that the superior court lacked jurisdiction. He argued that the word “investigate” in G.S. 15A-641(c) required the prosecutor before presenting a bill of indictment to engage in fact finding following the return of the presentment. The trial court denied the defendant’s motion, and he was convicted at trial. On appeal, he again argued that, for the reasons raised in his motion to dismiss below, the superior court lacked jurisdiction to try him for the misdemeanor offense.
The court of appeals rejected the defendant’s argument. The court reasoned that G.S. 15A-641(c)’s investigation requirement requires a prosecutor to “formally examine the facts of a case.” Id. at __; 926 S.E.2d at 784. The court explained that while this may entail the gathering of additional facts, that is not a required step. It concluded that the prosecutor’s review of the file to prepare an indictment discharged her statutory duty to investigate the factual background of the presentment. Thus, the trial court did not err in denying the defendant’s motion to dismiss on this basis.
Myers and infractions.
What is an infraction? Infractions are defined as non-criminal violations of the law punishable only by a fine. G.S. 14-3.1(a). A great many of them are motor vehicle offenses, such as speeding, seat belt violations, and driving a vehicle with an expired inspection. Despite being defined as non-criminal, infractions are, in many respects, processed in court like misdemeanors. G.S. 14-3.1(b); G.S. 15A-1111.
District court generally has exclusive jurisdiction over infractions. District court has original and exclusive jurisdiction over infractions with two exceptions. G.S. 7A-253; G.S. 15A-1114(a). First, if an infraction is a lesser-included violation of a criminal action properly before the superior court, the superior court must, in factually appropriate cases, submit the infraction for the jury’s consideration. G.S. 7A-271(d). Second, if the infraction is a lesser-included violation of a criminal action properly before the court or if it is a related charge, the superior court may accept an admission of responsibility for the infraction. Id. Finally, a person found responsible for an infraction in district court may not appeal that adjudication to superior court. See S.L. 2013-385 (“An Act to Eliminate Appeals for Infractions . . . “) (effective for offenses committed on or after December 1, 2013, repealing G.S. 15A-1115(a), which formerly permitted a defendant the right to appeal a district court adjudication of responsibility for an infraction to superior court for a jury trial).
The court of appeals in Myers considered how these rules apply to a case in which a defendant is charged by indictment with a felony and also is alleged to have committed a related infraction. The defendant in Myers was indicted for felony flee to elude arrest, resisting a public officer (a misdemeanor) and two traffic infractions (failure to signal a lane change and failure to carry a valid driver’s license). The jury convicted the defendant of the felony and misdemeanor offenses and found the defendant responsible for the infractions. The defendant appealed. The court of appeals did not reach the merits of the arguments raised by the defendant, which related to sentencing on the misdemeanor offense and whether sufficient evidence supported the charge of failure to signal a lane change; instead, it concluded that the trial court lacked subject-matter jurisdiction over the traffic infractions.
Reciting the jurisdictional rules for infractions set forth above, the court concluded that none of the exceptions to the district court’s exclusive jurisdiction applied. The charged infractions were not lesser-included violations of the charged felony or misdemeanor offenses, and the defendant did not admit responsibility for either infraction. Therefore, the appellate court concluded that the superior court did not have subject-matter jurisdiction over the infractions. Accordingly, the court of appeals vacated the trial court judgment as to the misdemeanor conviction, with which the infractions had been consolidated for judgment.
Unanswered questions. Myers did not address whether a grand jury properly may return a bill of indictment charging an infraction that is not a lesser-included offense of a charged crime. (It is unnecessary to allege an infraction that is a lesser-included offense as it would be implicitly included within any greater charge.) The implication of the court’s decision is that the superior court lacked subject matter jurisdiction over the infractions from the outset and not simply that it lacked jurisdiction to impose judgment following a jury verdict. But suppose that the defendant had elected to admit responsibility for one of the charged infractions mid-trial. Would the superior court have lacked jurisdiction then? Recall that G.S. 7A-271(d)(2) provides that a superior court may accept admissions of responsibility for an infraction that is a lesser-included violation or a related charge.
In addition, the state constitutional right to indictment by a grand jury applies to “criminal charge[s],” see N.C. Const. Art. I, § 22, and, as previously noted, infractions are explicitly defined as not being crimes. Moreover, the statutory procedures for charging and hearing infractions make no reference to indictment or to superior court hearings, other than noting that if a superior court disposes of an infraction pursuant to G.S. 7A-271(d) (setting forth the two exceptions to exclusive district court jurisdiction mentioned above), appeal is as provided for criminal actions in superior court. G.S. 15A-1115.
I don’t know how frequently infractions are included in indictments. If this is a regular practice, the appellate courts soon may be called upon to weigh in on the propriety of that procedure.
