What happens when a magistrate issues a criminal summons for a defendant but the defendant can’t be located until after the court date on the summons has passed? For example, suppose that Magistrate Morales issues a criminal summons on January 1. The summons orders Defendant Daniels to come to court on February 1 to answer a charge of misdemeanor larceny of his neighbor’s lawnmower. No law enforcement officer is able to locate and serve Daniels until February 14, when Officer Oxendine spots Daniels enjoying a Valentine’s Day meal out with his girlfriend. What’s the officer supposed to do? Continue reading
Tag Archives: pleadings
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 →
While we wait to see what the North Carolina Supreme Court has to say in State v. Turner about the existing statute of limitations for misdemeanors, the General Assembly has amended G.S. 15-1 for future prosecutions.
Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).
Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well. Continue reading →
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? Continue reading →
Last week, the court of appeals decided State v. Allen, a case that holds that the pleading requirements that apply to indictments and other accusatory pleadings don’t necessarily apply to citations. The opinion is helpful to the State, but I think there’s a reasonable chance of further review. Continue reading →
I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Continue reading →
Indictment issues are the bane of the prosecutor’s existence. The rules about how an offense must be alleged in the indictment are highly technical. And because the rules are neither intuitive nor entirely consistent across offenses, they are hard to keep straight. Not surprisingly indictment issues account for a lot of black ink in the appellate reporters. Just how much? In my Criminal Case Compendium, which catalogues all types of criminal cases decided since 2008, there are a full 26 pages of case annotations on indictment issue cases! Continue reading →
How many charges can be placed on a single charging document, such as a citation, an arrest warrant, or an indictment? Old hands use the rule of thumb, no more than two charges per citation, no more than three charges in any other pleading. But where does that rule come from? And is it even correct? Continue reading →
In the game show Name that Tune, contestants had to identify song titles correctly in order to win cash prizes. In criminal pleadings in North Carolina, the state must identify drugs correctly in order to win convictions.
The latest illustration of this principle is State v. LePage, a decision rendered by the court of appeals last week. The defendant invited a teenage girl over to help with a craft project, drugged her food, and sexually assaulted her. He was charged with and convicted of several sex crimes, but he was also convicted of possession of a controlled substance with the intent to distribute; contaminating food or drink with a controlled substance; and delivery of a controlled substance to a minor. The indictments for the drug charges described the controlled substance at issue as “benzodiazepenes,” which the indictments categorized as falling under Schedule IV. (For more on the scheduling of drugs, see this post.)
In fact, the evidence suggested that the drug was clonazepam, one of a class of drugs known as benzodiazepenes. On appeal, the defendant argued that the indictment was fatally defective for failing to identify the specific controlled substance involved. The court of appeals agreed and vacated the drug convictions. (It affirmed the sexual assault convictions, which carried the heaviest sentences.) It noted that the term “benzodiazepenes” does not appear in Schedule IV, and that although many benzodiazepenes are Schedule IV drugs, some, like phenazepam, do not appear on the controlled substance schedules at all.
This isn’t the first time our appellate courts have demanded precision in charging drug crimes. See, e.g., State v. Ahmadi-Turshizi, 175 N.C. App. 783 (2006) (indictments for drug offenses involving “methylenedioxymethamphetamine” insufficient because Schedule I refers only to “3, 4-Methylenedioxymethamphetamine”; State v. Ledwell, 171 N.C. App. 328 (2005) (similar). And these rulings are reminiscent of the court of appeals’ recent cases rejecting lay opinion testimony about the identity of controlled substances. (See this post for an analysis of these cases.) The common theme is a demand for exactitude: just as winning Name that Tune required that the contestant’s answer was an “exact match” for the song title, under North Carolina law, the description of the substance in the criminal pleading must be an exact match for a substance listed in the appropriate schedule.