Tolling the Statute of Limitations after State v. Turner

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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.

Misdemeanors that occurred more than two years ago and were dismissed with leave due to the defendant’s failure to appear

The oldest outstanding misdemeanor charges in any given judicial district typically share one feature in common:  the defendant failed to appear in court. When a defendant fails to appear in court after being charged with a misdemeanor offense, the court often issues an order for his or her arrest. G.S. 15A-305.  If the order remains unserved and the prosecutor believes the defendant cannot be readily found, he or she may enter a dismissal with leave for nonappearance pursuant to G.S. 15A-932(a). A dismissal with leave for nonappearance removes the case from the court’s docket, but “all process outstanding retains its validity.” G.S. 15A-932(b). In addition, “all necessary actions to apprehend the defendant, investigate the case, or otherwise further its prosecution may be taken, including the issuance of nontestimonial identification orders, search warrants, new process, initiation of extradition proceedings, and the like.” Id.

Turner did not explore the interplay between the dismissal with leave statute and the statute of limitations. The State may argue that the provision in G.S. 15A-932(b) stating that “all process outstanding retains its validity” operates to toll the statute of limitations as of the date of the dismissal.  The defendant may argue, on the other hand, that the State was required to obtain a presentment, indictment or warrant within two years of the offense if it wished to toll the limitations period.

Beyond marshaling its legal arguments, I don’t know of any action that the State can take at this point – more than two years after the commission of the misdemeanor offense – to ensure that its prosecution may proceed.

Misdemeanors that occurred within the last two years and are charged by magistrate’s order

To toll the statute of limitations for these offenses under Turner, the State has two options.

First, it may dismiss the magistrate’s order and seek a warrant for arrest under G.S. 15A-304 charging the same offense. The risk of pursuing this course of action is that a judicial official might decline to issue an arrest warrant given that such warrants may be issued only when it appears to the judicial official that the person named in the warrant should be taken into custody. A judicial official who finds probable cause for an offense but does not deem it necessary to take the charged defendant into custody may opt to instead issue a criminal summons, a process that Turner did not recognize as tolling the statute of limitations. Thus, a law enforcement officer who is seeking issuance of a warrant for arrest in these circumstances should be prepared to explain the need for this type of process.

The second option the State may pursue is seeking a presentment and then an indictment for the misdemeanor charge from the grand jury. Bob Farb wrote here about the presentment process. If the State elects this option and the grand jury returns a presentment and indictment, the misdemeanor will be tried in superior court.

If no warrant, indictment or presentment issues within two years of a misdemeanor offense, the State must “commence the prosecution” within two years of the offense to satisfy the rule set forth in Turner. It isn’t clear what action by the State, short of swearing the first witness at trial or swearing and impaneling a jury in superior court, constitutes the commencement of the prosecution.

Misdemeanors that occurred within the last two years and are charged by citation

For these misdemeanors, the State may seek to toll the statute of limitations by obtaining a warrant for the defendant’s arrest. G.S. 15A-302(f). The State is not required to first dismiss the charges alleged in the citation. It must, however, convince the judicial official from whom it seeks issuance of the warrant to issue that process rather than a criminal summons.

As with a misdemeanor charged by magistrate’s order, the State may seek a presentment and indictment charging a cited misdemeanor. Though the process is available, it would be unusual for a misdemeanor for which a defendant was initially cited and released to be first adjudicated in superior court.

Misdemeanors for which process has not yet been issued

For new misdemeanor charges, the most straightforward way for the State to toll the statute of limitations under Turner is for it to seek a warrant for the defendant’s arrest, which again will require that it convince the judicial official that it is necessary to take the defendant into custody.

The Criminal Procedure Act does not, however, contemplate the issuance of a warrant for arrest in lieu of a magistrate’s order when a person has already been arrested. Instead, G.S. 15A-511(c) directs magistrates to issue a magistrate’s order upon finding probable cause to believe that a crime has been committed by a person arrested without prior issuance of a warrant. If magistrates follow this process, then the State may subsequently opt to dismiss the charges and seek issuance of a warrant for the defendant’s arrest.

I’ve previously shared my view that Turner was a surprise. I also think that a wholesale effort by prosecutors to bring about tolling under Turner will up-end misdemeanor criminal procedure as we know it, resulting in more arrests and more misdemeanor prosecutions in superior court. Have your own thoughts about the case and its potential impact? Share them using the comment feature below.

12 comments on “Tolling the Statute of Limitations after State v. Turner

  1. If a defendant is charged (and served) with a misdemeanor via citation or misdemeanor summons and subsequently fails to appear and more than two years passes from the offense date, could that serve as an effective waiver of the defendant’s right to claim that the SOL has run when they finally do appear to respond to the charges?

    Is a Worthless Check charge considered a crime of deceit as listed in NCGS 15-1 and therefore not subject to the 2 year SOL?

    Thanks!

  2. The real lesson from Turner is a cautionary tale about courts and lawyers relying upon headnotes. This decision is only a surprise if one has not actually read all of the underlying cases. The citation to Underwood for the proposition that “a warrant tolls the statute” is not supported by the actual holding or decision. It is the characterization of the holding by other cases (and the resulting headnotes) which served to alter the original decision.
    The analysis about VL cases is sound. There does not seem to be an easy answer. As for the question of whether an arrest warrant tolls the statute, there seems to be little support for this proposition. The real “decision” in Turner was to clarify that Underwood was limited to situations where the defendant appealed for a trial de novo. There is no other authority that can be read to support the conclusion that an arrest warrant tolls the statute. So, perhaps the arrest warrant could toll the statute if the NCSC overrules or clarifies that portion of Turner. Absent that, nothing short of an indictment or appeal to Superior Court within the two year period would toll the statute. As a public policy matter, I would suggest that this is a good thing because it will encourage misdemeanor cases to be resolved within two years and act as a semi-enforceable speedy trial act-something the North Carolina courts desperately need.

    • well written

    • Dismissing a misdemeanor case with leave in District Court will not toll the statute of limitation pursuant to N.C. Gen. Stat. § 15A-932. However, dismissing a case with leave in Superior Court will toll the statute of limitations if the misdemeanor case was lawfully initiated in Superior Court or was lawfully transferred to Superior Court.

      The statute states that “all process outstanding retains its validity.” § 15A-932(b). The statute of limitations does not make the process defective or invalid. A process is only invalid if it was initiated after the statute of limitations ran not before. The issue is that the District Court loses its subject matter jurisdiction over misdemeanor cases unless there is indictment, presentment, or a de novo appeal to Superior Court within a two year period.

  3. Thank you for this explanation, as well as others, regarding State v. Turner.

    Has there been, or could there be, a discussion of misdemeanor charges that are exempt from this two year statute of limitations provision found in 15-1? Would misdemeanor crimes involving malice, as well as misdemeanor crimes involving deceit, be exempt? What are examples of misdemeanor crimes that may be found to be exempt, in the event that State v. Turner is upheld or not heard by the Supreme Court?

    Thank you all for your time and efforts in unpacking State v. Turner.

  4. well written

  5. well written ANDY, lol

  6. What is your opinion on the NC SHP approach to seek a warrant for DWI’s. How do you handle civil revocations if you dismiss the Magistrate order and seek a warrant for arrest for DWI.

    • Seeking a warrant for a DWI when an arrest is feasible makes no practical or legal sense. If you read State v. Hundley, 272 N.C. 491 (1968) and State v. Underwood, 244 N.C. 68 (1956) carefully, you will realize that a warrant does not toll the statute of limitations if the case was never lawfully initiated in or transferred to Superior Court within the two year period.

  7. Does it bother anyone else that the SOG, without much legal authority, is suggesting that the State seek warrants for arrest for individuals, having nothing to do with their failure to appear in court?

    Even though they take the position that Turner is not binding law, they spend a great deal of time address how to get around it.

  8. […] yet to issue its opinion regarding the statute of limitations issue in State v. Turner (discussed here) and neither the court of appeals nor the supreme court has opined about the admissibility of […]

  9. So basically does this mean that now an order for arrest for a misdemeanor failure to appear no longer tolls the statute of limitations? So now does the statue of limitations still run on a misdemeanor case dismissed with leave when an order for arrest was issued over 2 years ago? This case seems to leave that as an unanswered question.

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