Last July, the North Carolina Administrative Office of the Courts (AOC) launched a new application for generating criminal process and pleadings: eWarrants. This application replaced NCAWARE and is part of the court system’s migration to eCourts, a digital system that will replace the current paper-based system for maintaining court records. Given the scope of eWarrants, it may not be surprising to hear that the rollout was not seamless. Indeed, the thousands of magistrates, clerks, deputy clerks, and assistant clerks who became immediate users of the application soon identified defects and issues, many of which have subsequently been resolved. One such issue was the application’s failure, in certain circumstances, to print out charging language on criminal process and pleadings such as magistrate’s orders and warrants for arrest. When the issuing official does not immediately detect and remedy such an error, a judge who later holds a first appearance on such a charge may wonder how to proceed. This post will review the judge’s options in such a circumstance.
First Appearance. Let’s start with a quick reminder about what a first appearance is. Any defendant charged with a felony in a criminal process that is not based upon an indictment as well as any defendant held in custody on misdemeanor charges must, subject to some limited exceptions, be brought before a district court judge within 72 hours of arrest. G.S. 15A-601(a). In addition to assuring a defendant’s right to counsel, reviewing conditions of release, and, in felony cases setting a date for a probable cause hearing, the judge at the first appearance for a felony case must examine the criminal process or magistrate’s order to determine whether the document charges the defendant with a criminal offense. G.S. 15A-604.
The eWarrants Problem. Here is whether the eWarrants problem may surface. Suppose the defendant was charged in an arrest warrant with assault with a deadly weapon with intent to kill. The magistrate created in the system the appropriate charging language, (for example, the defendant unlawfully, willfully, and feloniously did assault Jane Doe with a .38-caliber pistol, a deadly weapon, with the intent to kill her). However, because of a glitch in the eWarrants system that existed at the time, the arrest warrant included only the statutory citation, G.S. 14-32(c), and not the requisite charging language setting forth the factual statement of the charge and the name of the victim.
The Judge’s Options. A judge reviewing the arrest warrant at the first appearance would quickly ascertain that it was insufficient as it fails to state the essential elements of the crime. See G.S. 15A-924(a)(5); State v. Palmer, 293 N.C. 633, 639 (1977) (both indictments and warrants must “allege lucidly and accurately all the essential elements of the offense endeavored to be charged”).
G.S. 15A-604 sets forth three options for a judge who determines at first appearance that the process or order fails to charge a criminal offense. The judge may dismiss the charge, allow the State to amend the statement of the crime in the process or order; or continue the proceedings for not more than 24 hours to permit the State to initiate new charges. (There is another option, not relevant to this discussion, for setting a case for trial in district court with the consent of the prosecutor if the charge is a misdemeanor rather than a felony.)
Dismissal of the Charges. While dismissing the charge is an option, a judge may not want to exercise this option, particularly if the case involves serious felony charges. Dismissal would not, of course, bar the State from refiling charges, but it would result in the release of a defendant without the imposition of conditions designed to ensure that the defendant does no harm while on release and that he or she appears for court. Moreover, dismissal may not redound to the defendant’s benefit as he or she may be served with a new warrant before being released or may be immediately rearrested without a warrant and taken back before a magistrate. This may result in the defendant again being detained until he or she appears a day or more later back before a district court judge for what is functionally a second first appearance.
Amendment. Now for option two. G.S. 15A-604(b)(2) suggests that the State may amend the statement of the crime, but I am not sure that is a viable option in our example. Amendments are allowed so long as they do not alter the nature of the offense. See State v. Clements, 51 N.C. App. 113, 115-17 (1981) (concluding that State was properly allowed to amend the arrest warrant at the close of the State’s evidence because the amendment did not change the nature of the charged offense). Here, however, the existing pleading fails to charge any offense at all; thus, any amendment would necessarily alter the nature of the offense.
In addition to this legal impediment to amending the charge, there may be a practical impediment. The law enforcement officer who provided probable cause for the charges will not be present at the first appearance. An assistant district attorney will be, but he or she may lack enough information about the circumstances of the case to effectively amend the charges.
Continuance. So let’s consider option 3, which permits the court to continue the proceedings for not more than 24 hours to permit the State to initiate new charges. G.S. 15A-604(b)(3). This provision is related to the approach taken by G.S. 15A-956, which permits the court to recess the proceeding for up to 24 hours before ruling on a motion to dismiss made at arraignment or trial when the State plans to reinstitute a proper pleading. See Criminal Code Commission Commentary to G.S. 15A-956 (noting that this provision, like G.S. 15A-604(b)(3), adopts the technique of allowing the court to defer its ruling on the motion to dismiss rather than to extend jurisdiction over a defendant for a limited period following a formal finding of a charging defect).
G.S. 15A-604(b)(3) thus operates to extend the 72-hour window to permit the State additional time to correct pleading defects. The court may find this option preferable to dismissal of charges in a serious felony case for the reasons noted above. Such a continuance also may prevent the revolving door scenario that involves a law enforcement officer seeking new charges before the magistrate before the defendant is even released or rearresting the defendant and taking him or her back before the magistrate immediately upon release.
The Judge’s Call. None of this is to suggest that court officials are required to adopt a particular approach or that dismissal of charges is not ever appropriate. The purpose of this post is to remind judicial officials of their options, particularly in light of the recent technological changes that may result in uncommon defects in process.