Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue. Continue reading
Tag Archives: jurisdiction
Last week, I blogged about the lack of a statute of limitations for felony offenses in North Carolina. There is, of course, a two-year statute of limitations for misdemeanors, a matter that has been the subject of a fair amount of recent litigation. A reader posed an excellent question at the end of that post: Is the statute of limitations a defense that may be waived or does a trial court lack jurisdiction over a time-barred offense?
Suppose a defendant is found responsible in district court for one of the many infractions codified in Chapter 20. Take your pick: speeding, a seat belt violation, jaywalking, improper passing, or one of the many other non-criminal motor vehicle offenses. The defendant wishes to appeal that adjudication. May she appeal the case to superior court?
This scenario will sound familiar to many criminal attorneys: you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?
“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.
Yep, you’ve got a “sovereign citizen” on your hands.
Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.
The court of appeals last year vacated Sandra Brice’s conviction for habitual misdemeanor larceny for stealing five packs of steaks valued at $70 from a Food Lion in Hickory. The reason? The indictment alleged the steak theft and Brice’s four prior convictions for misdemeanor larceny in a single count. That violated a statutory rule requiring that prior convictions be alleged in a separate count, and, in the court of appeals’ view, deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny, a felony offense. Earlier this month, the North Carolina Supreme Court reversed the court of appeals and remanded the case for reinstatement of the trial court’s judgment. Read on to find out why.
A few election seasons ago, a campaign sign advocating “Denning for Judge” was posted in our neighborhood. My son noticed it on the way home from school and said, “Mom: Is Dad running for judge?” “No, he isn’t,” I said. Then, in a moment of pique, I said, “Actually, your dad isn’t qualified to be a judge. But I am.” Since I’ve obviously done such a great job teaching civics (and equal rights) to my children, I thought I’d share a bit with you about the selection, qualifications, and work of a North Carolina district court judge—a group of judicial officials with whom I frequently work. Continue reading →
I’ve had several questions recently about the territorial jurisdiction of municipal police in areas outside city limits. This post sums up the law. Continue reading →
Under G.S. 7A-272(c), the district court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H or I felony in certain circumstances. The law extending this limited jurisdiction to the district court came into effect in 1996 (S.L. 1995-725), and it has been used more and more over time. In FY 2000-01, for instance, 16 percent of all Class H and I felonies were pled in district court; in FY 2009-10, that number was up to 25 percent. (Those statistics came from the North Carolina Sentencing and Policy Advisory Commission’s annual statistical reports, available here—a data goldmine that’s definitely worth a look.)
Today’s post briefly covers some of the technicalities related to taking Class H and I felony pleas in district court, including the rules for appeals and probation violation hearings.
A defendant may only enter a plea to a Class H or I felony in district court with the consent of the presiding district court judge, the prosecutor, and the defendant. G.S. 7A-272(c). If the defendant has not yet been indicted and the case is still pending in district court, the prosecution must charge the defendant by information under G.S. 15A-644.1. After indictment, the case may—with the consent of the State, the defendant, and the presiding superior court judge—be transferred back to the district court under G.S. 15A-1029.1. G.S. 7A-272(c). When a plea is accepted in district court the trial judge must require that a true, complete, and accurate record be made of the proceeding. G.S. 7A-191.1. In general, a district judge accepting a felony plea is authorized to act in the same manner a superior court judge would be authorized to act if the plea had been entered in superior court. Authorized appeals of the conviction are to the appellate division. G.S. 7A-272(d).
If a felony case pled in district court is sentenced to probation (and many of them are), the superior court has default jurisdiction over all probation violation hearings held pursuant to G.S. 15A-1345(e). The district court may, however, hear those matters with the consent of the State and the defendant (technically, the judge doesn’t get a vote). G.S. 7A-271(e). If the revocation hearing is held in district court and the court activates a sentence or imposes special probation, the appeal of that revocation is to superior court. It’s not obvious that that would be the case; as mentioned above, G.S. 7A-272(d) says “appeals that are authorized in these matters are to the appellate division.” However, the Supreme Court of North Carolina held in State v. Hooper, 358 N.C. 122 (2004), that the requirement in G.S. 15A-1347 that “[w]hen a district court judge . . . activates a sentence or imposes special probation, the defendant may appeal to the superior court for a de novo revocation hearing” trumps G.S. 7A-272(d). So, Class H and I revocations in district court get a de novo appeal to superior court—perhaps lessening the likelihood that everyone will agree to hold the initial violation hearing in district court in the first place.
The jurisdiction and appeal rules for Class H and I felony probation matters handled in district court are different from the rules for felony drug treatment court or therapeutic court judgments supervised in district court. Under legislation passed in 2009 (S.L. 2009-452 and S.L. 2009-516) and 2010 (S.L 2010-96), those cases may, with the consent of the chief district court judge and the senior resident superior court judge (and no input from the defendant or the State), be supervised by the district court—which is good, because they were sometimes being supervised there before the law expressly allowed it. G.S. 7A-272(e). The district court can modify or extend probation judgments in those cases, but jurisdiction to revoke probation is in the superior court—unless the chief district court judge and the senior resident superior court judge agree that it is in the interest of justice to hold the revocation proceeding in district court (again, no vote for the State or the defendant). Appeals of revocations in those cases are—you guessed it—to the appellate division. G.S. 7A-271(f).
I recently received an email that began “I have been reading in the news that Sheriff Mike Cain of Yadkin County pled guilty to eight misdemeanors. I am curious how the Superior Court had jurisdiction [since the case was not an appeal, but rather one of original jurisdiction].” The author suggested that the answer might make an interesting blog post, and I agree.
In the case of former Sheriff Cain, the answer appears to be straightforward. The Winston-Salem Journal reports here that Mr. Cain agreed “to plead guilty to charges related to maintaining a secret bank account and using county funds for a personal Harley-Davidson motorcycle.” Specifically, he “pleaded guilty to six misdemeanor counts of conversion of property by a bailee. He had faced six felony counts of the same crime. He also pleaded guilty to one count of private use of a publicly owned vehicle, one count of willfully failing to discharge his duties as sheriff and one count of a public official benefiting from a private contract.”
The jurisdiction of the superior court is established by G.S. 7A-271. Subsection (a)(1) of that section gives the superior court jurisdiction over “a misdemeanor . . . [w]hich is a lesser included offense of a felony” that has been indicted or brought by criminal information. And subsection (a)(3) gives the superior court jurisdiction over misdemeanors that are transactionally related to felony charges. Mr. Cain seems to have been charged with felony violations of G.S. 14-168.1, which gave the superior court jurisdiction over the lesser included misdemeanor violations and over the additional transactionally related misdemeanors.
Before I read the newspaper report, though, I wondered if the answer might be more exotic. Subsection (a)(2) of G.S. 7A-271 gives the superior court jurisdiction over misdemeanors “[w]hen the charge is initiated by presentment.” What’s a presentment? Well, as defined by G.S. 15A-641(c), it is a
written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person, or two or more persons jointly, with the commission of one or more criminal offenses. A presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment returned in his district and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.
In other words, a presentment is a way for the grand jury to sua sponte tell the district attorney to check into a possible crime. If the prosecutor finds a crime, he or she can submit an indictment for it, even if the crime is a misdemeanor that otherwise would be charged in district court. See generally State v. Birdsong, 325 N.C. 418 (1989); State v. Gunter, 111 N.C. App. 621 (1993). Prosecutors sometimes ask grand juries to consider a presentment — which is perfectly proper, see G.S. 15A-628(a)(4) — in misdemeanor cases that are high profile, involve public officials, or otherwise are certain to be appealed if brought in district court. In other words, if the case is going to end up in superior court anyway, and it deserves the greater level of formality available there, bringing it by presentment, then indictment, may make sense. But again, that doesn’t appear to have happened in Mr. Cain’s case.
If there are other circumstances in which presentments are used, please let me know privately or post a comment. They’re pretty unusual so I may be missing a wrinkle or two.
It is a regular condition of probation for all supervised probationers that they “[r]emain within the jurisdiction of the court unless granted written permission to leave by the court or [their] probation officer.” G.S. 15A-1343(b)(2).
What does “jurisdiction” mean in that statute? The county in which probation was imposed? The judicial district? The entire state? The law isn’t clear, and there’s disagreement on the issue around the state. The confusion stems in part from the fact that jurisdiction can mean multiple things. It can refer to the court’s physical location, its legal authority, or to the geographical limits over which that authority may be exercised.
I think the clearest reading of the jurisdiction of the court in this context is the state of North Carolina. The court that imposes probation always retains authority to alter or revoke it under G.S. 15A-1344(a), and that court also has the power to issue an order for arrest—valid throughout the state under G.S. 15A-305(d)—in response to an alleged violation. So, from a judicial authority standpoint, a probationer remains within the sentencing court’s reach regardless of where he or she travels within the state.
If the condition was intended to restrict a probationer to the county or judicial district in which probation was imposed I think the General Assembly would have said so more clearly. In fact, the legislature did say it more clearly last year when it added the default condition for probationers subject to intermediate punishment that they “[r]emain within the county of residence unless granted written permission to leave.” G.S. 15A-1343(b4)(3). If “jurisdiction of the court” in regular condition #5 already meant “county of residence,” there would have been little reason to add that new, ostensibly more restrictive condition in 2009.
There are no reported decisions that answer the question directly. A case that comes close is Donoghue v. N.C. Department of Correction, 166 N.C. App. 612 (2004), which involved a probation officer’s appeal of a disciplinary demotion. When discussing whether the officer engaged in “grossly inefficient job performance” by allowing a probationer to visit another state, the court of appeals (and litigant DOC) consistently read the remain-within-the-jurisdiction condition as a limit on out-of-state (not out-of-county) travel. There are, for what it’s worth, unpublished cases that appear to read the condition differently. See State v. Taylor, 180 N.C. App. 477 (2006) (unpub.) (affirming a revocation for failure to remain within the jurisdiction of the court when a Richmond County probationer eluded supervision in Scotland County); State v. Jones, 179 N.C. App. 435 (2006) (unpub.) (concluding that a probationer failed to remain within the jurisdiction of the court by “giving a false address and not making himself available for supervision”). Those cases look to me like “failure to report” violations pegged to the wrong condition of supervision, although I suppose that’s not necessarily a problem under State v. Hubbard, 198 N.C. App. 154 (2009) (holding that a violation report that did not clearly state the particular condition violated nonetheless gave a probationer sufficient notice when it set out the behavior that constituted a violation) (also discussed here).
Probation officers should note that the Division of Community Corrections takes the position that jurisdiction of the court in G.S. 15A-1343(b)(2) includes the entire state of North Carolina. Policy & Procedures § D.0302(b). If there’s ever a dispute about it, that administrative interpretation would be entitled to significant deference from the courts. Jones v. Keller, 364 N.C. 249 (2010).