A Fine Sentence for Class 3 Misdemeanors

I thought I’d take a few minutes and jot down some questions and answers about the new fine-only punishment scheme for Class 3 misdemeanors for many defendants (enacted as part of the 2013 Appropriations Act). Several hours later—after thinking about the different permutations, reading several cases, talking with patient colleagues, and pondering further—I came up with a list of 33 questions and answers on Appointment of Counsel for Class 3 Misdemeanors. The subject poses both constitutional and practical questions.

Beginning with offenses committed on or after December 1, 2013, the basic rule is that a court may not impose a punishment other than a fine for a Class 3 misdemeanor if the defendant has three or fewer convictions and no other statute authorizes a greater punishment. See G.S. 15A-1340.23(d). The impact of this rule is that defendants who cannot receive more than a fine are generally not entitled to appointed counsel because, under the Sixth Amendment, the right to counsel in misdemeanor cases applies only if the defendant receives a sentence of active or suspended imprisonment.

This aspect of Sixth Amendment jurisprudence has always been awkward to apply because it requires that courts work backward from the sentence to be imposed at the end of the case in determining the defendant’s entitlement to counsel at the outset of the case. (For felonies, an indigent defendant always has a right to appointed counsel.) The new punishment scheme for Class 3 misdemeanors poses new questions, such as:

  • What dispositions are permissible for “fine-only” Class 3 misdemeanors? Are costs permissible? A deferred prosecution? A sentence of time served?
  • When does the court have to determine the defendant’s prior record for purposes of appointing counsel?
  • What of a defendant charged with a Class 3 misdemeanor who has been arrested and cannot make bond? Does he or she have a right to counsel although not subject to imprisonment if convicted?
  • Do the collateral consequences of a conviction have a bearing on the analysis?

People undoubtedly will have more questions as well as different views about the impact of the change. As always, feel free to weigh in with your questions and comments.

15 thoughts on “A Fine Sentence for Class 3 Misdemeanors”

  1. All very good questions Mr. Rubin. While this change is good for the States coffers what affects on the Citizens secured rights does it have?

    What happens to these so called criminals when they fail to comply because they can’t reasonably comply, ‘and’ sustain their lives? Their ‘secured’ (supposedly) right to ‘life’ (ability to sustain it) is abridged in the interest of the State’s coffers, under a false pretense of protecting the Citizens of the state from some evil doer.

    For the most part these sort of offences are violations of some sort of Executive Administrative Regulation created under the Authority of a Statute, and are not found codified in the North Carolina criminal laws (Chapter 14). These sort of offences are generally being applied to ‘persons’ engaged in some sort of ‘privileged conduct’ (supposedly) which requires licensing, or permitting of some sort or another which makes them ‘subject to the regulation’ being applied to them.

    They are rammed through at the District Court level with Judicial Officials acting in an Administrative capacity and not truly a criminal or civil Court capacity. There are no real ‘meaningful public records’ created or kept of these hearings (so called trials), and always if challenged lead to ‘trial de novo’ into a Superior Court setting for a ‘trial of record or jury trial’.

    We as People have some very serious problems when it comes to a ‘proper remedy’ to blatant violations of our ‘unalienable rights’ supposedly secured by our most fundamental laws.

  2. Two questions, off the top of my head, the answers to which may both involve the “unless another statute provides otherwise for the offense” language:

    1. Am I missing something in 90-95(d)(4), or does this mean that simple possession of marijuana, for someone with 0-3 points, is a fine-only offense?

    2. Why does the new misdemeanor sentencing chart ( show 1-10 days and 1-15 days as possible sentences for Class 3 misdemeanors, with 0 or 1-3 points?

    • Regarding your first question, I believe Class 3 misdemeanor possession of marijuana (that is, possession of 1/2 ounce or less) is a fine-only offense unless the defendant has four or more prior convictions. For a fuller discussion, see Question no. 22 of the paper. For a discussion of a 90-96 conditional discharge, see Question no. 12.

      Regarding your second question, I believe the drafters of the chart wanted to track the revised statute, which both shows those sentences as possible punishments in the table of prior conviction levels and limits the punishment to a fine in most instances. As you suggest, the ultimate result is that the punishment is limited to a fine for a defendant with three or fewer prior convictions unless a statute authorizes otherwise.

  3. I have interesting question can a person do time instead of paying a fine if they know they can’t afford the fine nor do they want a fine?

  4. Also in case of class 3 fine misdemeanor, is it possible ask for a motion or also to present evidence of your own kind? Do you get chance go to trial or would a person only go before a judge and if they want present their own evidence what would one have do to do this when arriving at court would they say motion?

  5. Has there been any changes to 15A-401 in practice (although not in the statutes)regarding ability for an officer to arrest for something as small as a class 3 misdemeanor such as 2nd degree trespassing?

  6. so i was present in court today supporting y boyfriend he was charged with drivin without a license has had 2 previous DUI charges that r cleared up . He tried continuing for financial reasons. But today they gave him 3 days jail time but how is this possible if it’s a class 3 misdemeanor and should only pay a fine? He got the ticket in march 2014

  7. Since NCGA SESSION LAW 2011-408, SENATE BILL 315

    Cites in Section 1
    (e) Penalties for Unlawful Removal of Signs. – It is a Class 3 misdemeanor for a person
    to steal, deface, vandalize, or unlawfully remove a political sign that is lawfully placed under
    this section

    What is the expected penalty for someone seen to remove, throw on the ground in nearby wooded areas, or notable make signs from competing candidates for town council seats “disappear” within a couple of hours after they are placed? The material cost for these political campaign signs my be less than $5.00 each but to what extent are these fines for political sign removal enforced?


  8. What is the punishment for a class 3 for a person who has never been in any trouble before but stole $82.49 of goods from a store. Was caught leaving the store returned the goods to a policeman which were returned to the store.

  9. My husband was charged with a Class 3 misdemeanor charge for possession and for paraphanelia and has a court date later this month. Both are considered misdemeanors and I assume, as I’ve not been made privy to exactly how much he was caught with, that it was s small enough amount to be considered for personal use. However, he has one prior felony intent to sell and two felony possession charges stemming from the early 90s. Although the amount he was caught with recently is considered a misdemeanor, will his prior convictions and probation mean a harsher sentence for this misdemeanor? Thanks.

  10. My college aged son failed to pay a ticket for a trash violation and was subsequently arrested and had to appear in court. He was given a choice of court appointed attorney, plead innocent, or plead guilty. His plan was to plead guilty and pay the fine but was told that this wouldn’t clear his record so he declined. He now has another court date scheduled and is under the impression that he will be able to remove the charge by doing community service. Is this a viable option? We are out of state and are having trouble figuring out the best plan. Thanks

  11. Thought-provoking blog post , I am thankful for the details – Does anyone know where my company could possibly acquire a blank PA DL-15 version to work with ?

  12. My daughter received a a speeding ticket (GS20-141(J1)) passing through North Carolina on her way home to Michigan. As a college student, she does not have the time or funds to travel to her court date. Can she pay the court clerk the $240 for the ticket at the court listed on the ticket to waive the court appearance? If not, can an attorney represent her in court in her absence?


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