GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
SESSION LAW 2013-385
SENATE BILL 182
AN ACT to eliminate appeals for infractions, to modify appeals to the superior court in probation revocations in which the DEFENDANT HAS WAIVED A HEARING, TO AMEND THE LAW PERTAINING TO RESENTENCING UPON THE REVERSAL OF A SENTENCE ON APPELLATE REVIEW, TO MAKE CHANGES REGARDING THE PROCEDURES FOR A MOTION FOR APPROPRIATE RELIEF, and To reclassify certain misdemeanors as infractions.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 15A‑1115 reads as rewritten:
"§
15A‑1115. Review of disposition by superior court.Review of
infractions originally disposed of in superior court.
(a) Appeal of
District Court Decision. – A person who denies responsibility and is found
responsible for an infraction in the district court, within 10 days of the
hearing, may appeal the decision to the criminal division of the superior court
for a hearing de novo. Upon appeal, the defendant is entitled to a jury trial
unless he consents to have the hearing conducted by the judge. The State must
prove beyond a reasonable doubt that the person charged is responsible for the
infraction unless the person admits responsibility. Unless otherwise provided
by law, the procedures applicable to misdemeanors disposed of in the superior
court apply to those infraction hearings. In the superior court, a prosecutor
must represent the State. Appeal from the judgment in the superior court is as
provided for other criminal actions in superior court, and the Attorney General
must represent the State in an appeal of such actions.
(b) Review of Infractions Originally Disposed of in Superior Court. – If the superior court disposes of an infraction pursuant to its jurisdiction in G.S. 7A‑271(d), appeal from that judgment is as provided for criminal actions in the superior court."
SECTION 2. G.S. 15A‑1347 reads as rewritten:
"§
15A‑1347. Appeal from revocation of probation or imposition of special
probation upon violation.violation; consequences of waiver of
hearing.
(a) When Except
as provided in subsection (b) of this section, when a district court judge,
as a result of a finding of a violation of probation, activates a sentence or
imposes special probation, the defendant may appeal to the superior court for a
de novo revocation hearing. At the hearing the probationer has all rights and
the court has all authority they have in a revocation hearing held before the
superior court in the first instance. Appeals from lower courts to the superior
courts from judgments revoking probation may be heard in term or out of term,
in the county or out of the county by the resident superior court judge of the
district or the superior court judge assigned to hold the courts of the
district, or a judge of the superior court commissioned to hold court in the
district, or a special superior court judge residing in the district. When the
defendant appeals to the superior court because a district court has found he
violated probation and has activated his sentence or imposed special probation,
and the superior court, after a de novo revocation hearing, orders that the
defendant continue on probation under the same or modified conditions, the
superior court is considered the court that originally imposed probation with
regard to future revocation proceedings and other purposes of this Article.
When a superior court judge, as a result of a finding of a violation of
probation, activates a sentence or imposes special probation, either in the
first instance or upon a de novo hearing after appeal from a district court,
the defendant may appeal under G.S. 7A‑27.
(b) If a defendant waives a revocation hearing, the finding of a violation of probation, activation of sentence, or imposition of special probation may not be appealed to the superior court."
SECTION 3. G.S. 15A‑1335 reads as rewritten:
"§ 15A‑1335. Resentencing after appellate review.
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served. This section shall not apply when a defendant, on direct review or collateral attack, succeeds in having a plea of guilty vacated."
SECTION 3.1. G.S. 15A-1420 reads as rewritten:
"§ 15A‑1420. Motion for appropriate relief; procedure.
…
(b2) Noncapital
Cases. – Assignment of Motion for Review; Initial Review of Motion; Time Frame
for Hearings and Ruling on Motion. –
(1) In noncapital
cases, the senior resident superior court judge or chief district court judge,
as appropriate, shall, within 30 days of the filing of the motion, assign the
motion for initial review to the appropriate judge as provided in G.S. 15A‑1413.
(2) The assigned
judge, no later than 30 working days after the assignment, shall review the
motion and issue a written initial review order that concludes the initial
review of the motion in one of the following manners: (i) by dismissing the
motion for lack of merit on its face, (ii) by directing the State, if
necessary, to file an answer within 30 days from the date on which the initial
review order was issued, or (iii) by dispensing with the requirement that the
State file an answer and instead order a hearing. Unless the motion is
dismissed, the initial review order shall also indicate whether the defendant
shall be allowed to proceed without the payment of costs; indicate whether
counsel shall be appointed; and calendar a hearing on the motion within the
appropriate time period as set out in subdivisions (3) and (4) of this
subsection.
(3) Unless
provided otherwise by this subsection, if the court determines that an
evidentiary hearing is required, then the hearing must be held within 90 days
from the date on which the initial review order was issued; if no evidentiary
hearing is required, then the hearing must be held within 60 days from the date
on which the initial review order was issued. If, in the initial review order,
the court orders the State to file an answer and the court determines that an
evidentiary hearing is required, then the evidentiary hearing must be held
within 150 days from the date on which the initial review order was issued; if
the court determines that the hearing is not an evidentiary hearing, then the
hearing must be held within 120 days from the date on which the initial review
order was issued.
(4) If the court
determines pursuant to subdivision (2) of this subsection that counsel shall be
appointed, the time periods provided in subdivision (3) of this subsection
shall be calculated from the date of the appointment of counsel rather than the
date of the initial review order and shall be extended for an additional 60
days.
(5) The court
shall provide notice of the date of the hearing to both the State and the
defendant, or the defendant's counsel if defendant is represented by counsel,
no less than five working days prior to the date of any hearing. The court,
except for good cause shown as provided in subdivision (6) of this subsection,
must rule on a motion within 60 days from the date that the hearing concludes.
(6) Notwithstanding
any other provision of this subsection, the court may, upon request of a party
to the motion, grant an extension of time to comply with any deadline under
this subsection, not to exceed 30 days. No subsequent request by the party to
extend this deadline shall be granted unless the court enters a written order
containing detailed findings of fact of extraordinary circumstances.
Notwithstanding any other provision of this subsection, the senior resident
superior court judge or chief district court judge, as appropriate, may, upon
request of a judge assigned to review a motion for appropriate relief, grant to
the assigned judge an extension of time to comply with any deadline under this
subsection, not to exceed 30 days. No subsequent request by the assigned judge
to extend this deadline shall be granted unless the senior resident superior
court judge or the chief district court judge, as appropriate, enters a written
order containing detailed findings of fact of extraordinary circumstances. The
failure of the court to comply with the deadlines under this subsection is
grounds for any party to petition the senior resident superior court judge or
the chief district court judge, as appropriate, to reassign the motion of
appropriate relief to a different judge empowered to act upon a motion for
appropriate relief. The failure of the court to comply with the deadlines under
this subsection also entitles any party to the motion for appropriate relief to
seek a writ of mandamus to obtain compliance with the deadline.
(7) Notwithstanding
any other provision of this subsection, failure to meet a deadline under this
subsection is not a ground for the summary granting of a motion for appropriate
relief or other summary relief, including without limitation, ordering the
release of the prisoner.
(b3) Capital Cases.
– Review and Calendaring of Motion. – In capital cases, the judge shall review
the motion and enter an order directing the State to file its answer within 60
days of the date of the order. If a hearing is necessary, the judge shall
calendar the case for hearing without unnecessary delay.
…."
SECTION 4. If Senate Bill 402, 2013 Regular Session, becomes law, then G.S. 20‑35, as amended by Section 18B.14(g) of that bill, reads as rewritten:
"§ 20‑35. Penalties for violating Article; defense to driving without a license.
(a) Penalty. – Except as otherwise provided in subsection (a1) or (a2) of this section, a violation of this Article is a Class 2 misdemeanor unless a statute in the Article sets a different punishment for the violation. If a statute in this Article sets a different punishment for a violation of the Article, the different punishment applies.
(a1) The following offenses are Class 3 misdemeanors:
(1) Failure to obtain a license before driving a motor vehicle, in violation of G.S. 20‑7(a).
(2) Failure to
carry a valid license while driving a motor vehicle, in violation of G.S. 20‑7(a).
(3)(2) Failure to
comply with license restrictions, in violation of G.S. 20‑7(e).
(4) Operation of a
motor vehicle with an expired license, in violation of G.S. 20‑7(f).
(5) Failure to
notify the Division of Motor Vehicles of an address change for a drivers
license within 60 days after the change occurs, in violation of G.S. 20‑7.1.
(6)(3) Permitting a
motor vehicle owned by the person to be operated by an unlicensed person, in
violation of G.S. 20‑34.
(a2) A person who does any of the following is responsible for an infraction:
(1) Fails to carry a valid license while driving a motor vehicle, in violation of G.S. 20‑7(a).
(2) Operates a motor vehicle with an expired license, in violation of G.S. 20‑7(f).
(3) Fails to notify the Division of an address change for a drivers license within 60 days after the change occurs, in violation of G.S. 20‑7.1.
(b) Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 761, s. 4.
(c) Defenses. – A person
may not be convicted of found responsible for failing to carry a
regular drivers license if, when tried for that offense, the person produces in
court a regular drivers license issued to the person that was valid when the
person was charged with the offense. A person may not be convicted of found
responsible for driving a motor vehicle without a regular with an
expired drivers license if, when tried for that offense, the person shows
all the following:
(1) That, at the time of the offense, the person had an expired license.
(2) The person renewed the expired license within 30 days after it expired and now has a drivers license.
(3) The person could not have been charged with driving without a license if the person had the renewed license when charged with the offense."
SECTION 5. If Senate Bill 402, 2013 Regular Session, becomes law, then G.S. 20‑176, as amended by Section 18B‑14(h) of that bill, reads as rewritten:
"§ 20‑176. Penalty for misdemeanor or infraction.
(a) Violation of a
provision of Part 9, 10, 10A, or 11 of this Article is an infraction unless the
violation is specifically declared by law to be a misdemeanor or felony. Violation
Except as otherwise provided in subsection (a1) of this section,
violation of the remaining Parts of this Article is a misdemeanor unless
the violation is specifically declared by law to be an infraction or a felony.
(a1) A person who does any of the following is responsible for an infraction:
(1) Fails to carry the registration card in the vehicle, in violation of G.S. 20‑57(c).
(2) Fails to sign the vehicle registration card, in violation of G.S. 20‑57(c).
(3) Fails to notify the Division of an address change for a vehicle registration card within 60 days after the change occurs, in violation of G.S. 20‑67.
(b) Unless a specific penalty is otherwise provided by law, a person found responsible for an infraction contained in this Article may be ordered to pay a penalty of not more than one hundred dollars ($100.00).
(c) Except as otherwise
provided in subsection (c2) of this section, and unless Unless a
specific penalty is otherwise provided by law, a person convicted of a
misdemeanor contained in this Article is guilty of a Class 2 misdemeanor. A
punishment is specific for purposes of this subsection if it contains a
quantitative limit on the term of imprisonment or the amount of fine a judge
can impose.
(c1) Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20‑28(a) and (b), G.S. 20‑141(j), G.S. 20‑141.3(b) and (c), G.S. 20‑141.4, or a second or subsequent conviction of G.S. 20‑138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A‑217(5), for a violation of this Chapter.
(c2) A person who
does any of the following is guilty of a Class 3 misdemeanor:
(1) Fails to carry
the registration card in the vehicle, in violation of G.S. 20‑57(c).
(2) Fails to sign
the vehicle registration card, in violation of G.S. 20‑57(c).
(3) Fails to
notify the Division of Motor Vehicles of an address change for a vehicle
registration card within 60 days after the change occurs, in violation of G.S. 20‑67.
(d) For purposes of determining whether a violation of an offense contained in this Chapter constitutes negligence per se, crimes and infractions shall be treated identically."
SECTION 6. If Senate Bill 402, 2013 Regular Session, becomes law, then G.S. 113‑135(a), as amended by Section 18B‑14(m) of that bill, reads as rewritten:
"(a) Any person who
violates any provision of this Subchapter or any rule adopted by the Marine
Fisheries Commission or the Wildlife Resources Commission, as appropriate,
pursuant to the authority of this Subchapter, is guilty of a misdemeanor except
that punishment for violation of the rules of the Wildlife Resources Commission
is limited as set forth in G.S. 113‑135.1. Fishing without a license
in violation of G.S. 113‑174.1(a) or G.S. 113‑270.1B(a)
is punishable as a Class 3 misdemeanor. an infraction. Otherwise,
unless a different level of punishment is elsewhere set out, anyone convicted
of a misdemeanor under this section is punishable as follows:
(1) For a first conviction, as a Class 3 misdemeanor.
(2) For a second or subsequent conviction within three years, as a Class 2 misdemeanor."
SECTION 7. This act becomes effective December 1, 2013, and applies to offenses committed on or after that date, probation violations occurring on or after that date, motions filed on or after that date, and resentencing hearings held on or after that date. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.
In the General Assembly read three times and ratified this the 26th day of July, 2013.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Pat McCrory
Governor
Approved 10:45 a.m. this 23rd day of August, 2013