Orders for Arrest after Indictment

After a grand jury returns a true bill of indictment, should an order for arrest (OFA) issue as a matter of course? Looking at the OFA form, you might think so: it has eight check boxes, each of which provides a possible basis for the issuance of an OFA, such as a defendant’s failure to appear, or the filing of a probation revocation report. The third check box on the form says simply, “TRUE BILL OF INDICTMENT [G.S. 15A-305(b)(1)] a Grand Jury has returned a true bill of indictment against the defendant, a copy of which is attached.”

But looking at the cited provision, G.S. 15A-305(b)(1), it is apparent that an OFA should not issue as a matter of course. That subsection provides that an OFA may issue when “[a] grand jury has returned a true bill of indictment against a defendant who is not in custody and who has not been released from custody pursuant to . . . [b]ail.” (emphasis supplied). Obviously, every defendant who has previously been charged in an executed arrest warrant or a magistrate’s order will either be “in custody” or will have been “released from custody pursuant to . . . [b]ail.” Thus, G.S. 15A-305(b)(1) provides a basis for issuing an OFA only for defendants who are directly indicted, i.e., who have not previously been charged, and for defendants who have been charged in an arrest warrant but not yet arrested. (An OFA is probably superfluous in the latter case, but it doesn’t do any harm.)

That rule makes perfect sense. Defendants who have previously been arrested and charged have already appeared before a magistrate and have already had bond set. Providing such defendants with notice of the indictment under G.S. 15A-630 is all that is required. There’s no need to re-arrest such defendants. In fact, if a defendant was previously arrested and charged, posted bond, and was released, rearresting the defendant is unfair, because the magistrate may impose a new bond, thereby requiring the defendant to pay a bondsman a second time for what is really a single set of charges. (I tend to think that the magistrate shouldn’t impose a new bond, if the charges in the indictment are the same as the charges in the arrest warrant or the magistrate’s order, but that’s a separate question, and as a matter of practice, my sense is that many magistrates do impose a new bond.)

I know that in some districts, an OFA issues as a matter of course upon the return of an indictment. If folks in those districts think I’m missing an important consideration, please post a comment or let me know by email.