What’s the Statute of Limitations for a Felony in NC?

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An experienced attorney from another state recently remarked on her surprise at learning that there was no statute of limitations barring the prosecution of felony offenses in North Carolina after the passage of a specified period of time. This attorney’s comment reminded me that while the no-statute-of-limitations-state-of-affairs may be well-known among experienced practitioners of criminal law in NC, it isn’t necessarily known by others. 

The rule is simple. While G.S. 15-1 requires that misdemeanors (other than malicious misdemeanors, whatever those are) be charged within two years of their commission, there is no corresponding statute of limitations for felonies. See State v. Johnson, 275 N.C. 264, 271 (1969) (“In this State no statute of limitations bars the prosecution of a felony. . . . The constitutional guarantee of a speedy trial, therefore, imposes the only limitation upon purposeful and oppressive delays between the date of a felonious offense and the commencement of the prosecution.). That means there is no statutory time bar to charging any felony, whether it be a charge for writing a worthless check of more than $2,000 or first degree murder.

Prosecutions do occur decades after felonious acts. Just last month, the court of appeals upheld a defendant’s convictions for taking indecent liberties with a child and felony child abuse based on sexual conduct he inflicted on his daughter between 1990 and 1993, more than 25 years before he was charged with those crimes. See State v. Alonzo, ___ N.C. App. ___ (Aug. 21, 2018). Upon reaching the age of 18, the daughter of the defendant in Alonzo reported the abuse to the Cumberland County Sheriff’s Department, which “ultimately informed her that there is no statute of limitations for felonies in North Carolina.” (Slip op. at 2).

Similarly, the court of appeals in State v. Barnett, 223 N.C. App. 450 (2012), upheld the conviction of the defendant who was prosecuted for the second degree rape of his niece more than 25 years after the crime was committed. And in State v. Sharpe, 2006 WL 1320079, 177 N.C. App. 566 (2006) (unpublished), the court upheld the defendant’s convictions for rape and indecent liberties based on acts that occurred 29 to 30 years before the defendant was charged. In response to the defendant’s complaint in Sharpe that the delayed prosecution violated his constitutional rights (an argument that the court found he had failed to preserve for appeal), the State responded that “‘as a result of the complained of delay, defendant escaped thirty years of mandatory imprisonment.’” Id. at *9.

Is there any constitutional limitation against bringing charges for crimes long past? The Supreme Court in United States v. Marion, 404 U.S. 307 (1971), noted that legislatively enacted statutes of limitations are the “‘primary guarantee against bringing overly stale criminal charges’” and “‘provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.’” Id. at 322. ­The Marion Court recognized, however, that the Due Process Clause of the Fifth Amendment also played a role in determining whether delays in charging a defendant are permissible. The Court subsequently explained in United States v. Lovasco, 431 U.S. 783, 790 (1977), that a due process inquiry based upon the government’s delay in charging a defendant must consider the reasons for the delay as well as the prejudice to the accused. The North Carolina Supreme Court summed up the test this way:  “Essentially a preaccusation delay violates due process only if the defendant can show that the delay actually prejudiced the conduct of his defense and that it was unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant.” State v. McCoy, 383 N.C. 1, 7-8 (1981).

What’s the rule for lesser-included misdemeanors? The court of appeals in State v. Taylor, 212 N.C. App. 238, 248–49 (2011), held that that two-year statute of limitations for misdemeanor offenses does not apply when the issue of a defendant’s guilt of a misdemeanor offense is submitted to the jury as a lesser included offense of a properly charged felony. In Taylor, the defendant was charged with felony obstruction of justice, but was convicted of the lesser included offense of misdemeanor obstruction of justice. Because the defendant was indicted more than two years after the obstructive acts, he could not have been independently charged with or tried for the lesser-included misdemeanor offense. The court rejected the defendant’s argument that the trial court erred by permitting the jury to consider the issue of his guilt of misdemeanor obstruction of justice. Noting that a defendant is entitled to have all lesser degrees of offense supported by the evidence submitted to the jury as possible alternative verdicts, the court determined that there was no exception to this rule for misdemeanors not charged within two years.

Do other states have a similar rule?  I know of at least two other states who do not have statutes of limitations for felonies: Kentucky and Maryland (with some exceptions for specified felonies). Please send in a comment if you know of others.

What do you think? Is it good public policy to not have a statute of limitations for felonies? Should some types of felonies be subject to a limitations period?  If so, which ones? Send in a comment to share your view.

4 comments on “What’s the Statute of Limitations for a Felony in NC?

  1. In 1995 a young leftover ADA serving under a newly elected DA was assigned a multiple count statutory rape/ sex offense case in a medium sized mountain county. The first step was to review the charging instruments. Dates of offense were by year only. 1957-1963! The victim was by then a middle aged female and the Defendant was an elderly male. The case was brought about by an arranged “gotcha” telephone call in which the elderly male perp backhandedly apologized 30+ years after the fact on tape. When I got the case I had to send it back to the Grand Jury because he was indicted under current statutes. Some of the old charges were punishable by death when they were in effect. Make sense of that in a post Coker v. Georgia world when you are having a sentencing hearing! The defendant eventually plead guilty, for a plethora of reasons, to reduced charges, but not before the good folks at Institute of Government helped me find what to charge and something for him to plead to.
    Prosecution of old cases is possible but difficult. I am not sure the State would have survived a well crafted motion for a bill of particulars. Nevertheless, I hope the folks at the IOG will not throw away the dirty, smelly old books. As long as there is no statute of limitations on felonies, they may yet be needed.

  2. The General Assembly has already caved on the age issue (changing criminal charges from 16 to 18). Let’s hope they don’t do the same thing on felonies. Justice denied because somebody has effectively dodged the system for an arbitrary number of years is wrong. Nobody’s out there dredging up worthless check cases from 1985. The capability to re-examine old evidence to find new clues through DNA and other analysis continues to grow. The unlimited statute of limitations means those committing class A/B/C crimes can never rest easy and gives hope to the victims that they may eventually have their day in court.

  3. Is the stat of lim a defense or is it a subject matter issue? I don’t do crim law any more, and never dealt with this when i did, so I’m rusty. The difference involved b/n the two would be waiver issues I believe right?

  4. […] 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 […]

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