Offense Date for Habitual Felon Indictments

A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon.

A reasonable argument can be made for either one, but neither is perfect. Using the date of the substantive felony may result in uncertainty when the habitual felon indictment attaches to several substantive felonies committed on multiple dates. On the other hand, using the date of the last of the defendant’s previous convictions may be confusing when a defendant has more previous convictions than are included in the habitual felon indictment. In such a case, the defendant may actually have become a habitual felon on a date earlier than the date of the last conviction that is listed in the indictment. No appellate case or statute directly resolves which approach is preferable.

I suspect that our appellate courts would approve of either approach. However, I lean towards using the date of the substantive felony. If the defendant is charged with multiple substantive felonies that were allegedly committed on different dates, I recommend using a date range that encompasses the substantive offenses.

The main reason that I recommend that approach is that the few appellate cases to discuss the offense date on habitual felon indictments all involve amending the date to match the date of the substantive felony, and all the cases say that such amendments are permissible. Thus, the cases at least indirectly approve of the practice of using the date of the substantive felony. I’m not aware of a case addressing the approach of using the last of the defendant’s previous convictions. I suspect that the appellate courts would approve of that approach also, given the relevant opinions’ statements to the effect that the specific date is not essential to a habitual felon charge, but there’s more support in the cases that we have for using the date of the substantive felony.

Below, I have summarized the relevant cases of which I am aware. If you know of others or have additional or different thoughts, please post a comment or let me know directly.

• State v. May, 159 N.C. App. 159 (2003) (defendant was charged with obtaining property by false pretenses and with being a habitual felon; both indictments listed the date of arrest as the offense date, but the obtaining offense had actually taken place several months earlier; the State moved to amend both indictments to reflect the date the substantive felony was committed; the court of appeals ruled that the amendment was properly allowed and stated: “The date of the felony offense accompanying the habitual felon indictment is not an essential element of establishing habitual felon status. Rather, [G.S.] 14-7.3 requires, in relevant part, only the dates of the underlying felony convictions or pleas and the dates the underlying felonies were committed.”)

• State v. Locklear, 117 N.C. App. 255 (1994) (defendant’s habitual felon indictment listed an offense date of 12/19/92, although the substantive felony was actually committed on 12/2/92; the opinion doesn’t explain whether the 12/19/92 date was the date of arrest or some other date; the State moved to amend the habitual felon indictment to allege 12/2/92 as the date of offense; the court of appeals ruled that the amendment was properly allowed and stated: “it was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment”)

• State v. Smith, 205 N.C. App. 469 (2010) (unpublished) (defendant sought dismissal of his habitual felon indictment in part because the “indictment stated an offense date different from the date listed for the substantive felony”; the court of appeals ruled that he was not entitled to dismissal on that basis, noting that “the trial court became aware of the discrepancy during a hearing on a pretrial motion for joinder of the offenses for trial and with the consent of defendant amended the habitual felon indictment to indicate the date of the offense as the same date stated in the indictment for the substantive felony”)