GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	3 

SENATE BILL 33
Second Edition Engrossed 5/10/95
House Committee Substitute Favorable 6/3/96

Short Title:  Felony Pleas in Dist. Ct.	(Public)

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Sponsors:

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Referred to:  

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January 26, 1995

A BILL TO BE ENTITLED
AN ACT TO MAKE VARIOUS CHANGES IN THE CRIMINAL JURISDICTION OF DISTRICT AND SUPERIOR COURT AND TO MAKE VARIOUS CRIMINAL LAW PROCEDURAL CHANGES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 7A-272 is amended by adding the following new subsections to read:
"( c)	With the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant's plea of guilty or no contest to a Class H or I felony if:
(1)	The defendant is charged with a felony in an information filed pursuant to G.S. 15A-644.1, the felony is pending in district court, and the defendant has not been indicted for the offense; or
(2)	The defendant has been indicted for a criminal offense but the defendant's case is transferred from superior court to district court pursuant to G.S. 15A-1029.1.
(d)	Provisions in Chapter 15A of the General Statutes shall apply to a plea authorized under subsection (c) of this section as if the plea had been entered in superior court, so that a district court judge is authorized to act in these matters in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court, and appeals that are authorized in these matters are to the appellate division."
Sec. 2.  The catch line for G.S. 7A-272 reads as rewritten:
"§ 7A-272.  Jurisdiction of district court; concurrent jurisdiction in guilty or no contest pleas for certain felony offenses; appellate and appropriate relief procedures applicable."
Sec. 3.  Article 32 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-644.1.  Filing of information when plea of guilty or no contest in district court to Class H or I felony.
A defendant who pleads guilty or no contest in district court pursuant to G.S. 7A-272(c)(1) shall enter that plea to an information complying with G.S. 15A-644(b), except it shall contain the name of the district court in which it is filed."
Sec. 4.  Article 18 of Chapter 7A of the General Statutes is amended by adding a new section to read:
"§ 7A-191.1.  Recording of proceeding in which defendant pleads guilty or no contest to felony in district court.
The trial judge shall require that a true, complete, and accurate record be made of the proceeding in which a defendant pleads guilty or no contest to a Class H or I felony pursuant to G.S. 7A-272."
Sec. 5.  G.S. 15A-1011(c) reads as rewritten:
"(c)	Upon entry of a plea of guilty or no contest or after conviction on a plea of not guilty, the defendant may request permission to enter a plea of guilty or no contest as to other crimes with which he is charged in the same or another prosecutorial district as defined in G.S. 7A-60. A defendant may not enter any plea to crimes charged in another prosecutorial district as defined in G.S. 7A-60 unless the district attorney of that district consents in writing to the entry of such plea. The prosecutor or his representative may appear in person or by filing an affidavit as to the nature of the evidence gathered as to these other crimes. Entry of a plea under this subsection constitutes a waiver of venue. A superior court is granted jurisdiction to accept the plea, upon an appropriate indictment or information, even though the case may otherwise be within the exclusive original jurisdiction of the district court. A district court may accept pleas under this section only in cases within the original jurisdiction of the district court and in cases within the concurrent jurisdiction of the district and superior courts pursuant to G.S. 7A-272(c)."
Sec. 6.  Chapter 15A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 58A.
"Procedures Relating to Felony Guilty Pleas
in District Court.
"§ 15A-1029.1.  Transfer of case from superior court to district court to accept guilty and no contest pleas for certain felony offenses.
(a)	With the consent of both the prosecutor and the defendant, the presiding superior court judge may order a transfer of the defendant's case to the district court for the purpose of allowing the defendant to enter a plea of guilty or no contest to a Class H or I felony.
(b)	The provisions of Article 58 of this Chapter apply to a case transferred under this section from superior court to district court in the same manner as if the plea were entered in superior court.  Appeals that are authorized in these matters are to the appellate division."
Sec. 7.  G.S. 7A-290 reads as rewritten:
"§ 7A-290.  Appeals from district court in criminal cases; notice; appeal bond.
Any defendant convicted in district court before the magistrate may appeal to the district court for trial de novo before the district court judge. Any defendant convicted in district court before the judge may appeal to the district court for a trial de novo by jury.  Notice of appeal may be given orally in open court, or to the clerk in writing within 10 days of entry of judgment. Upon expiration of the 10-day period in which an appeal may be entered, if an appeal has been entered and not withdrawn, the clerk shall transfer the case to the district court docket for trial de novo by jury.  The original bail shall stand pending appeal, unless the judge orders bail denied, increased, or reduced."
Sec. 8.  G.S. 15A-1201 reads as rewritten:
"§ 15A-1201.  Right to trial by jury.
In all criminal cases the defendant has the right to be tried by a jury of 12 whose verdict must be unanimous. In the district court the judge is the finder of fact in criminal cases, but the defendant has the right to appeal for trial de novo in district court as provided in G.S. 15A-1431.  In superior court all criminal trials in which the defendant enters a plea of not guilty must be tried before a jury."
Sec. 9.  G.S. 15A-1431 reads as rewritten:
"§ 15A-1431. Appeals by defendants from magistrate and district court judge; trial de novo.
(a)	A defendant convicted before a magistrate may appeal for trial de novo before a district court judge without a jury.
(b)	A defendant convicted in the district court before the judge may appeal to the district court for trial de novo with a jury as provided by law. Upon the docketing in the district court of an appeal from a judgment imposed pursuant to a plea arrangement between the State and the defendant, the jurisdiction of the district court over any misdemeanor dismissed, reduced, or modified pursuant to that plea arrangement shall be the same as was had by the district court prior to the plea arrangement.
(c)	Within 10 days of entry of judgment, notice of appeal may be given orally in open court or in writing to the clerk. Within 10 days of entry of judgment, the defendant may withdraw his appeal and comply with the judgment. Upon expiration of the 10-day period, if an appeal has been entered and not withdrawn, the clerk must transfer the case to the appropriate court docket.
(d)	A defendant convicted by a magistrate or district court judge is not barred from appeal because of compliance with the judgment, but notice of appeal after compliance must be given by the defendant in person to the magistrate or judge who heard the case or, if he is not available, notice must be given:
(1)	Before a magistrate in the county, in the case of appeals from the magistrate; or
(2)	During an open session of district court in the district court district as defined in G.S. 7A-133, in the case of appeals from district court.
The magistrate or district court judge must review the case and fix conditions of pretrial release as appropriate. If a defendant has paid a fine or costs and then appeals, the amount paid must be remitted to the defendant, but the judge, clerk or magistrate to whom notice of appeal is given may order the remission delayed pending the determination of the appeal.
(e)	Any order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order.
(f)	Appeal pursuant to this section stays the execution of portions of the judgment relating to fine and costs. Appeal stays portions of the judgment relating to confinement when the defendant has complied with conditions of pretrial release. If the defendant cannot comply with conditions of pretrial release, the judge may order confinement in a local confinement facility pending the trial de novo in district court.
(g)	The defendant may withdraw his appeal at any time prior to calendaring of the case for trial de novo. The case is then automatically remanded to the court docket from which the appeal was taken, for execution of the judgment.
(h)	The defendant may withdraw his appeal after the calendaring of the case for trial de novo only by consent of the court, and with the attachment of costs of that court, unless the costs or any part of the costs are remitted by the court.  The case may then be remanded by order of the court to the court from which the appeal was taken for execution of the judgment with any additional court costs that attached and that have not been remitted."
Sec. 10.  Chapter 15A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 67.
"Trial De Novo by Jury.
"§ 15A-1119.  Selecting and impaneling the jury; procedure to determine trial judge.
	(a)	The provision of Chapter 9 of the General Statutes, Jurors, pertinent to criminal cases and the provisions of Article 72 of Chapter 15A of the General Statutes apply in the selection and impaneling of jurors for a trial de novo in district court.
(b)	Notwithstanding any other provision of law, the judge who presided in district court at the time the defendant was convicted of the misdemeanor from which the defendant is appealing shall not preside over the trial de novo by jury."
Sec. 11.  G.S. 7A-271 reads as rewritten:
"§ 7A-271.  Jurisdiction of superior court.
(a)	The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:
(1) 	Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or
(2) 	When the charge is initiated by presentment; or
(3) 	Which may be properly consolidated for trial with a felony under G.S. 15A-926;
(4) 	To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or
(5) 	To accept a guilty plea to a lesser included or related charge.
	(c)	When a district court is established in a district, any superior court judge presiding over a criminal session of court shall order transferred to the district court any pending misdemeanor which does not fall within the provisions of subsection (a), and which is not pending in the superior court.
(d)	The criminal jurisdiction of the superior court includes the jurisdiction to dispose of infractions only in the following circumstances:
(1) 	If the infraction is a lesser-included violation of a criminal  action properly before the court, the court must submit the infraction for the jury's consideration in factually appropriate cases.
(2) 	If the infraction is a lesser-included violation of a criminal action properly before the court, or if it is a related charge, the court may accept admissions of responsibility for the infraction. A proper pleading for the criminal action is sufficient to support a finding of responsibility for the lesser-included infraction."
Sec. 12.  G.S. 7A-304 reads as rewritten:
"§ 7A-304.  Costs in criminal actions.
(a)	In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected, except that when the judgment imposes an active prison sentence, costs shall be assessed and collected only when the judgment specifically so provides, and that no costs may be assessed when a case is dismissed.
(1)	For each arrest or personal service of criminal process, including citations and subpoenas, the sum of five dollars ($5.00), to be remitted to the county wherein the arrest was made or process was served, except that in those cases in which the arrest was made or process served by a law-enforcement officer employed by a municipality, the fee shall be paid to the municipality employing the officer.
(2)	For the use of the courtroom and related judicial facilities, the sum of six dollars ($6.00) in the district court, including cases before a magistrate, but excluding any misdemeanor case tried as a trial de novo by jury, and the sum of twenty-four dollars ($24.00) in superior court, to be remitted to the county in which the judgment is rendered.  In all cases where the judgment is rendered in facilities provided by a municipality, the facilities fee shall be paid to the municipality.  Funds derived from the facilities fees shall be used exclusively by the county or municipality for providing, maintaining, and constructing adequate courtroom and related judicial facilities, including: adequate space and furniture for judges, district attorneys, public defenders, magistrates, juries, and other court related personnel; office space, furniture and vaults for the clerk; jail and juvenile detention facilities; free parking for jurors; and a law library (including books) if one has heretofore been established or if the governing body hereafter decides to establish one.  In the event the funds derived from the facilities fees exceed what is needed for these purposes, the county or municipality may, with the approval of the Administrative Officer of the Courts as to the amount, use any or all of the excess to retire outstanding indebtedness incurred in the construction of the facilities, or to reimburse the county or municipality for funds expended in constructing or renovating the facilities (without incurring any indebtedness) within a period of two years before or after the date a district court is established in such county, or to supplement the operations of the General Court of Justice in the county.
(3)	For the retirement and insurance benefits of both State and local government law-enforcement officers, the sum of seven dollars and twenty-five cents ($7.25), to be remitted to the State Treasurer.  Fifty cents (50¢) of this sum shall be administered as is provided in Article 12C of Chapter 143 of the General Statutes.  Five dollars and seventy-five cents ($5.75) of this sum shall be administered as is provided in Article 12E of Chapter 143 of the General Statutes, with one dollar and twenty-five cents ($1.25) being administered in accordance with the provisions of G.S. 143-166.50(e).  One dollar ($1.00) of this sum shall be administered as is provided in Article 12F of Chapter 143 of the General Statutes.
(3a)	For the supplemental pension benefits of sheriffs, the sum of seventy-five cents (75¢), to be remitted to the Department of Justice and administered under the provisions of Article 12G of Chapter 143 of the General Statutes.
(4)	For support of the General Court of Justice, the sum of forty-one dollars ($41.00) in the district court, including cases before a magistrate, but excluding any misdemeanor case tried as a trial de novo by jury, and the sum of forty-eight dollars ($48.00) in the superior court, to be remitted to the State Treasurer.
(5)	For using pretrial release services, the district or superior court judge shall, upon conviction, impose a fee of fifteen dollars ($15.00) to be remitted to the county providing the pretrial release services.  This cost shall be assessed and collected only if the defendant had been accepted and released to the supervision of the agency providing the pretrial release services.
(6)	For support of the General Court of Justice, for the issuance by the clerk of a report to the Division of Motor Vehicles pursuant to G.S. 20-24.2, the sum of fifty dollars ($50.00), to be remitted to the State Treasurer.  Upon a showing to the court that the defendant failed to appear because of an error or omission of a judicial official, a prosecutor, or a law-enforcement officer, the court shall waive this fee.
(a1)	The costs assessed pursuant to subsection (a) may also be collected by clerks of court for charges in which a party elects to pay the court's costs to satisfy the requirements of G.S. 20-7.2.  Costs collected pursuant to this subsection shall be allocated in the same manner as other costs collected pursuant to this section.  If a party elects to pay the costs of court to satisfy the requirements of G.S. 20-7.2 and is subsequently adjudged guilty of the same charge by the court, he shall not be required to pay the costs of court again for that charge, but he is subject to any other orders of the court, including an order to pay a fine.
(b)	On appeal, costs are cumulative, and costs assessed before a magistrate shall be added to costs assessed in the district court.  Costs for criminal cases and infractions appealed within the district court shall be assessed at the amount specified for costs of criminal cases in superior court. Costs assessed in the district court shall be added to costs assessed in the superior court, except that the fee for the Law-Enforcement Officers' Benefit and Retirement Fund and the Sheriffs' Supplemental Pension Fund and the fee for pretrial release services shall be assessed only once in each case.  No additional district court costs shall be assessed against a defendant who gives notice of appeal from a misdemeanor conviction but withdraws it prior to the expiration of the 10-day period for entering notice of appeal.  When a case is reversed on appeal, the defendant shall not be liable for costs, and the State shall be liable for the cost of printing records and briefs in the Appellate Division.
(c)	Witness fees, expenses for blood tests and comparisons incurred by G.S. 8-50.1(a), jail fees and cost of necessary trial transcripts shall be assessed as provided by law in addition to other costs set out in this section.  Nothing in this section shall limit the power or discretion of the judge in imposing fines or forfeitures or ordering restitution.
(d)	In any criminal case in which the liability for costs, fines, restitution, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse such funds when paid in accordance with the following priorities:
(1)	Costs due the county;
(2)	Costs due the city;
(3)	Fines to the county school fund;
(4)	Sums in restitution prorated among the persons entitled thereto;
(5)	Costs due the State;
(6)	Attorney's fees.
Sums in restitution received by the clerk of superior court shall be disbursed when:
(1)	Complete restitution has been received; or
(2)	When, in the opinion of the clerk, additional payments in restitution will not be collected; or
(3)	Upon the request of the person or persons entitled thereto; and
(4)	In any event, at least once each calendar year.
(e)	Unless otherwise provided by law, the costs assessed pursuant to this section for criminal actions disposed of in the district court are also applicable to infractions disposed of in the district court.  The costs assessed in district court for misdemeanor convictions appealed are also applicable to infractions appealed to district court.  If an infraction is disposed of in the superior or district court pursuant to G.S. 7A-271(d), costs applicable to the original charge are applicable to the infraction."
Sec. 13.  G.S. 15A-941 reads as rewritten:
"§ 15A-941.  Arraignment before judge only upon written request; use of two-way audio and video transmission; entry of not guilty plea if not arraigned.
	(a)	Arraignment consists of bringing a defendant in open court or as provided in subsection (b) of this section before a judge having jurisdiction to try the offense, advising him of the charges pending against him, and directing him to plead. The prosecutor must read the charges or fairly summarize them to the defendant. If the defendant fails to plead, the court must record that fact, and the defendant must be tried as if he had pleaded not guilty.
	(b)	An arraignment in a noncapital case may be conducted by an audio and video transmission between the judge and the defendant in which the parties can see and hear each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding.
(c)	Prior to the use of audio and video transmission pursuant to subsection (b) of this section, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge for the judicial district or set of districts and approved by the Administrative Office of the Courts. 
(d)	A defendant will be arraigned in accordance with this section, only if the defendant files a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment.  If a bill of indictment is not required to be served pursuant to G.S. 15A-630, then the written request for arraignment must be filed not later than 21 days from the date of the return of the indictment as a true bill.  Upon the return of the indictment as a true bill, the court must immediately cause notice of the 21-day time limit within which the defendant may request an arraignment to be mailed or otherwise given to the defendant and to the defendant's counsel of record, if any.  If the defendant does not file a written request for arraignment, then the court shall enter a not guilty plea on behalf of the defendant.
(e)	Nothing in this section shall prevent the district attorney from calendaring cases for administrative purposes."
Sec. 14.  G.S. 15A-942 reads as rewritten:
"§ 15A-942. Right to counsel.
If the defendant appears at the arraignment without counsel, the court must inform the defendant of his right to counsel, must accord the defendant opportunity to exercise that right, and must take any action necessary to effectuate the right.  If the defendant does not file a written request for arraignment, the court, in addition to entering a plea of not guilty on behalf of the defendant, shall also verify that the defendant is aware of the right to counsel, that the defendant has been given the opportunity to exercise that right, and must take any action necessary to effectuate that right on behalf of the defendant."
Sec. 15.  G.S. 15A-952(c) reads as rewritten:
"(c)	Unless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if a written request is filed for arraignment and if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.
If a written request for arraignment is not filed, then any motion listed in subsection (b)	of this section must be filed not later than 20 days from the date of the return of the bill of indictment as a true bill."
Sec. 16.  G.S. 15A-1221(a) reads as rewritten:
"(a)	The order of a jury trial in superior court, in general, is as follows:
	(1a)	Unless the defendant has filed a written request for an arraignment, the court must enter a not guilty plea on behalf of the defendant in accordance with G.S. 15A-941.  If a defendant does file a written request for an arraignment, then the defendant must be arraigned and must have his plea recorded out of the presence of the prospective jurors in accordance with G.S. 15A-941.
(2)	The judge must inform the prospective jurors of the case in accordance with G.S. 15A-1213.
(3) 	The jury must be sworn, selected and impaneled in accordance with Article 72, Selecting and Impaneling the Jury.
(4) 	Each party must be given the opportunity to make a brief opening statement, but the defendant may reserve his opening statement.
(5) 	The State must offer evidence.
(6) 	The defendant may offer evidence and, if he has reserved his  opening statement, may precede his evidence with that statement.
(7) 	The State and the defendant may then offer successive rebuttals as provided in G.S. 15A-1226.
(8) 	At the conclusion of the evidence, the parties may make arguments to the jury in accordance with the provisions of G.S. 15A-1230.
(9) 	The judge must deliver a charge to the jury in accordance with the provisions of G.S. 15A-1231 and 15A-1232.
(10)	The jury must retire to deliberate, and alternate jurors who have not been seated must be excused as provided in G.S. 15A-1215."
Sec. 17.  G.S. 15A-135 reads as rewritten:
"§ 15A-135.  Allegation of venue conclusive in absence of timely motion.
Allegations of venue in any criminal pleading become conclusive in the absence of a timely motion to dismiss for improper venue under G.S. 15A-952. A defendant may move to dismiss for improper venue upon trial de novo in district court, provided he did not in the district court nonjury trial with benefit of counsel stipulate venue or expressly waive his right to contest venue."
Sec. 18.  G.S. 15A-952(b) reads as rewritten:
"(b)	Except as provided in subsection (d), when the following motions are made in superior court or upon trial de novo by jury in district court, they must be made within the time limitations later time:
(1)	Motions to continue.
(2)	Motions for a change of venue under G.S. 15A-957.
(3)	Motions for a special venire under G.S. 9-12 or G.S. 15A-958.
(4)	Motions to dismiss under G.S. 15A-955.
(5)	Motions to dismiss for improper venue.
(6)	Motions addressed to the pleadings, including:
a.	Motions to dismiss for failure to plead under G.S. 15A-924(e).
b.	Motions to strike under G.S. 15A-924(f).
c.	Motions for bills of particulars under G.S. 15A-924(b) or G.S. 15A-925.
d.	Motions for severance of offenses, to the extent required by G.S. 15A-927.
e.	Motions for joinder of related offenses under G.S. 15A-926(c)."
Sec. 19.  G.S. 15A-953 reads as rewritten:
"§ 15A-953.  Motions practice in district court.
In misdemeanor prosecutions in the district court motions should ordinarily be made upon arraignment or during the course of trial, as appropriate. A written motion may be made prior to trial in  district court. With the consent of other parties and the district court judge, a motion may be heard before trial. Upon trial de novo in district court, motions are subject to the provisions of G.S. 15A-952, and except as provided in G.S. 15A-135, no motion in district court upon trial de novo is prejudiced by any ruling upon, or a failure to make timely motion on, the subject in district court in the nonjury trial."
Sec. 20.  G.S. 15A-975(c) reads as rewritten:
"(c)	If, after a pretrial determination and denial of the motion, the judge is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, he may permit the defendant to renew the  motion before the trial or, if not possible because of the time of discovery of alleged new facts, during trial.
When a misdemeanor is appealed by the defendant for trial de novo in district court, the State need not give the notice required by this section."
Sec. 21.  G.S. 15A-1101 reads as rewritten:
"§ 15A-1101.  Applicability of superior court procedure.
Trial procedure in the district court is in accordance with the provisions of Subchapter XII, Trial in Superior Court, except for  provisions:
	(2)	Requiring recordation of proceedings unless they specify their applicability to the district court.
(3)	That specify their applicability to superior court."
Sec. 22.  This act becomes effective December 1, 1996, and applies to offenses committed on or after that date.