Procedure Archives – Page 27 of 70 – North Carolina Criminal Law

Special Rules for Pleading and Trying Habitual Offenses

May 7, 2018January 18, 2017 Shea Denning

Author’s Note: The North Carolina Supreme Court reversed the court of appeals decision in State v. Brice, which is discussed in the body of this post. You can read about the state supreme court’s ruling here.

Everyone knows that having a criminal history is bad. John wrote earlier this week about C-CAT, an on-line, searchable database that helps folks identify many of the non-criminal consequences of a conviction—like losing a professional license. The criminal consequences of an earlier conviction are, in contrast, much easier to figure out. A criminal record generally results in greater punishment for new crimes. For a handful of North Carolina crimes, a prior conviction for a similar offense increases the grade of the new offense – sometimes converting what would otherwise be a misdemeanor to a felony. Special rules govern the charging, arraignment, and trial for such offenses. The failure to follow them is the subject of considerable case law from our state’s appellate courts, including two recent opinions from the North Carolina Court of Appeals.

State Supreme Court Rules that the State Bar Can’t Discipline a Sitting Judge for Judicial Misconduct

January 9, 2017 Jeff Welty

Judges are lawyers, and lawyers are subject to discipline by the State Bar. Does that mean that judges are subject to discipline by the State Bar? Generally not, according to a recent ruling by the Supreme Court of North Carolina.

Tolling the Statute of Limitations after State v. Turner

October 15, 2020January 4, 2017 Shea Denning

The court of appeals held last month in State v. Turner, __ N.C. App. __, 793 S.E.2d 287 (2016), temp. stay allowed, __ N.C. __ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations applicable to misdemeanors. The court reasoned that the provision setting forth the statute of limitations, G.S. 15-1, was explicit in requiring that an indictment or presentment be issued within two years. The court said that only one extension of this rule had been recognized: Pursuant to State v. Underwood, 244 N.C. 68 (1956), a defendant may be tried upon a misdemeanor charged by a warrant within two years of the offense. Because Turner was not charged by presentment, indictment or warrant and the State failed to “commence the prosecution of its case” within two years of the offense, the court of appeals ruled that the trial court properly dismissed the charges.

Last month’s blog commentary included a lively dispute about whether trial courts are bound to follow Turner given the state supreme court’s issuance of a stay. Regardless of whether Turner is binding precedent (and I don’t think it yet is, given the stay), trial courts may rely on its reasoning. Moreover, the state supreme court may ultimately decline to review the opinion or, if it does grant review, may affirm its holding. Thus, prosecutors across the state are considering whether and how the State may satisfy or toll the statute of limitations for misdemeanors charged by citation or magistrate’s order.

There are at least four categories of such misdemeanors, and the implications for each are discussed below.

Court of Appeals Says Magistrate’s Order Does Not Toll Statute of Limitations

December 7, 2016 Shea Denning

The court of appeals held yesterday in State v. Turner, __ N.C. App. ___ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations for misdemeanors. Because the defendant was not tried within two years of the offense, the appellate court ruled that the trial court properly dismissed the charges. This opinion is as big as surprise to criminal procedure experts as the outcome of last month’s presidential election was to pollsters. Does it mean that district courts must dismiss charges for misdemeanor offenses that occurred more than two years ago?

At an Impasse Again

December 6, 2016 John Rubin

Twenty-five years ago the North Carolina Supreme Court departed from national standards on attorney-client decision-making and gave clients greater control over the direction of their case, including trial strategy and tactics. Since then, the North Carolina courts have sorted through various matters on which attorneys and clients have disagreed. A recent decision, State v. Ward (Nov. 1, 2016), applies and perhaps expands one of the exceptions to client control over the case.

Expert Testimony about Eyewitness Identification

December 5, 2016 Jeff Welty

This post addresses three recurrent issues concerning eyewitness identification:

When, if at all, is expert testimony about eyewitness identification admissible?
When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?

Last Means Last

November 16, 2016November 16, 2016 Shea Denning

A case involving charges of impaired driving is calendared on today’s district court docket. The defendant was charged more than two years ago; the case has been continued several times pursuant to motions made by the defendant and the State. When this case last appeared on the docket, the State moved for a continuance, and the defendant objected. The district court granted the State’s motion, but ordered that it be the last continuance for the State. Earlier this morning, the State again moved to continue the case. The district court denied the State’s motion, and directed the State to call the case or dismiss the charges. The State refused to take either action. What can the judge do?

North Carolina Court of Appeals Finds That Erroneous Completion of Juvenile Waiver of Rights Form Did Not Bar Admissibility of Confession

October 25, 2016 Bob Farb

Last week, the North Carolina Court of Appeals in State v. Watson (October 18, 2016) ruled that an officer’s erroneous completion of a juvenile waiver of rights form did not bar the admissibility of the juvenile’s confession. This post will discuss North Carolina statutory law concerning juvenile warnings and rights and the Watson ruling.

Self-Defense Provides Immunity from Criminal Liability

October 4, 2016 John Rubin

So say two statutes enacted by the General Assembly in 2011 as part of its revision of North Carolina’s self-defense law. G.S. 14-51.2(e) and G.S. 14-51.3(b) both state that a person who uses force as permitted by those statutes—in defense of home, workplace, and vehicle under the first statute and in defense of self or others under the second statute—“is justified in using such force and is immune from civil or criminal liability for the use of such force . . . .” What does this protection mean in criminal cases? No North Carolina appellate cases have addressed the self-defense immunity provision. This blog post addresses possible implications.

Charging Greater and Lesser-Included Offenses Separately

September 12, 2016September 12, 2016 Jeff Welty

Is it proper to charge a defendant separately with a greater offense and with a lesser-included offense? For example, is it proper to charge a defendant with robbery and with larceny arising out of the same taking, even though larceny is a lesser-included offense of robbery?