AN ACT TO INCREASE JUDICIAL DISCRETION IN SENTENCING FOR DRUG TRAFFICKING OFFENSES.
Separates Article 3, National Guard, of GS Chapter 127A into three Parts: General Provisions, Courts-Martial, and National Guard Family Assistance Centers. Places GS 127A-47 through 127A-63 in Part 2, Courts-Martial, making organizational changes. Makes the following additional changes to Part 2.
Amends GS 127A-50.1 to establish qualifications for the State's trial and defense counsel in courts-martial, including designation as a judge advocate and membership in the National Guard. Provides that the military judge, the State's trial counsel, and defense counsel in courts-martial are not required to be members of the NC State Bar.
Amends GS 127A-52, providing for the subject matter jurisdiction of courts-martial of the National Guard to be as prescribed by the Uniform Code of Military Justice and Manual for Courts-Martial, US, as was in use by the US Armed Forces at the time the offense was committed (was, as currently in use). Provides for the personal jurisdiction of the courts-martial to include all members of the NC National Guard at all times and in all places (previously conflated with subject matter jurisdiction provisions, and provided for jurisdiction to try accused persons of offenses committed while serving without the State and while going to and returning from service without the State in like manner and to the same extent as while serving within the State).
Amends GS 127A-56, making clarifying and technical changes. Adds that the State's trial counsel and defense counsel have the subpoena power granted to military judges and summary court officers in the statute.
Amends GS 127A-59, concerning sentencing by a court-martial, making clarifying and technical changes.
Amends GS 127A-60, eliminating the requirement for the Governor to approve a sentence imposed by a special or general court martial of the National Guard before its execution. Makes conforming changes.
Amends GS 127A-62, now providing that a court-martial's judgement or order can be appealed to the Wake County Superior Court (was limited to judgment which include a sentence to confinement). Provides that GS 15A-1431(f1), which provides for stays of payment of costs/fines, probation and active punishment pending appeal from magistrate and district court judge, applies to appeals under GS 127A-62 (previously provided for GS 15A-1451 to apply, which concerns stays pending appeal to the appellate division). Provides for an appeal to be made in writing and filed with the Clerk of Superior Court in Wake County within 10 days after the court-martial enters the judgment or order (was within 10 days of the Governor's approval of the sentence). Requires a copy of the appeal to be filed with the courts-martial and served on the opposing party. Provides for the defendant's assertion of errors, and no longer provides that all errors are waived if not asserted by the defendant. Adds a new subsection to provide for the State's assertion of errors on appeal, including the erroneous dismissal of a charge or exclusion of evidence that substantially proves a material fact, so long as double jeopardy does not prohibit further prosecution. Grants the defendant and the State the right to interlocutory appeal, but requires the State's trial counsel to certify to the court-martial that the appeal is not taken for the purpose to delay and that the evidence is essential to the case. Makes further clarifying and technical changes concerning appeals.
Applies to offenses committed on or after December 1, 2019. Provides a savings clause for prosecutions for offenses committed before the effective date of the act.
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