The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
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.