Bill Summary for S 384 (2017-2018)

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Summary date: 

Jun 27 2017

Bill Information:

View NCGA Bill Details2017-2018 Session
Senate Bill 384 (Public) Filed Thursday, March 23, 2017
AN ACT TO AMEND THE LAW REGARDING THE USE OF MOTIONS FOR APPROPRIATE RELIEF; TO CLARIFY THE DEFINITION OF "FELONY OFFENSE" FOR PURPOSES OF THE HABITUAL FELON LAW AND TO REMOVE THE SUNSET ON DRIVERS LICENSE ELIGIBILITY FOR PERSONS CONVICTED OF HABITUAL IMPAIRED DRIVING; TO INCLUDE BREAKING AND ENTERING WITH THE INTENT TO TERRORIZE AS A HABITUAL BREAKING AND ENTERING STATUS OFFENSE; TO CLARIFY THAT WHEN A PERSON IS CHARGED WITH AN OFFENSE WHICH REQUIRES MANDATORY FINGERPRINTING, FINGERPRINTING WILL BE ORDERED BY THE COURT IF THE OFFENDER WAS NOT ARRESTED AND FINGERPRINTED AT THE TIME OF THE OFFENSE; AND TO PROVIDE THAT A PRIVATE CITIZEN'S SHOWING OF PROBABLE CAUSE TO THE MAGISTRATE SHALL INCLUDE SUFFICIENT INFORMATION SUPPORTED BY OATH OR AFFIRMATION THAT A CRIME HAS OCCURRED AND SHALL ISSUE AS A SUMMONS UNLESS A SUBSTANTIAL LIKELIHOOD EXISTS THAT THE DEFENDANT WILL NOT RESPOND TO A SUMMONS; AND TO AMEND THE SHERIFF'S SUPPLEMENTAL PENSION FUND.
Intro. by Britt, Rabon, Meredith.

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Bill summary

House committee substitute makes the following changes to the 3rd edition.

Deletes all previous provisions. Changes the act's long and short titles, and now provides the following.

Part I. Motions for Appropriate Relief

Current law, GS 15A-1413(d), requires the senior resident superior court judge to assign a motion for appropriate relief filed in superior court for review and administrative action, which includes entry of a scheduling order for subsequent events in the case. This act specifies that entry of a scheduling order for subsequent events by the senior resident superior court judge includes disclosure of expert witness information described in GS 15A-903(a)(2) (requiring notice to the defendant by the prosecuting attorney) and GS 15A-905(c)(2) (requiring notice to the State by the defendant) for expert witnesses reasonably expected to be called at a hearing on the motion for appropriate relief.

Amends GS 15A-1420(b1), which sets out the procedure for filing of a motion for appropriate relief. Adds a new subdivision to require the judge assigned to the motion to conduct an initial review to determine if all of the claims in the motion are frivolous. Directs the judge to deny the motion upon initial review if the judge determines that all the claims in the motion are frivolous. Provides that if the motion presents sufficient information to warrant a hearing or the interest of justice so requires, the judge must appoint counsel for an indigent defendant who is not represented by counsel. Directs counsel to review the motion filed by the petitioner and either adopt the motion or file an amended motion. Provides that after post-conviction counsel files an initial or amended motion, or a determination is made that the petitioner is proceeding without counsel, the judge can direct the State to file an answer. Allows the State to file a limited answer alleging that as a matter of law the defendant is not entitled to the relief sought.

Makes technical changes to GS 7A-451, which specifies the actions and proceedings in which an indigent person is entitled to services of counsel under law. Further, provides that an indigent person is entitled to services of counsel in a motion for appropriate relief under GS Chapter 15A if (1) appointment of counsel is authorized by GS Chapter 15A and (2) the defendant has been convicted of a felony, the defendant has been fined $500 or more, or the defendant has been sentenced to a term of imprisonment (previously, the authorization of appointment of counsel under GS Chapter 15A was not required).

Effective December 1, 2017, and applies to motions for appropriate relief filed on or after that date.

Part II. Habitual Felons/Clarify Previous Convictions

Amends GS 14-7.1, concerning the definition of a felony offense for the purpose of declaring individuals to be habitual felons, providing that a felony offense includes (1) an offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and for which a guilty plea was entered or a conviction returned; (2) an offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies but the offense is substantially similar to an offense that is a felony in North Carolina and punishable by imprisonment for more than a year in state prison, and for which a guilty plea has been entered or a conviction returned; and (3) any offense that is a felony under federal law. Makes clarifying and organizational changes. Effective December 1, 2017, and applies to offenses committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon.

Eliminates the sunset provision set out in Section 7 of SL 2009-369, as amended, which allows an individual convicted of habitual impaired driving to be eligible to petition for a hearing to restore driving privileges after 10 years without any traffic or criminal convictions (currently, expires December 1, 2016). Retroactively effective December 1, 2016. 

Clarifies that prosecutions for offenses committed before the effective date of the act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. 

Part III. Include Breaking and Entering with Intent to Terrorize in Habitual Breaking and Entering

Amends GS 14-7.25 to include the offense of breaking or entering with the intent to terrorize or injure an occupant of the building (a Class H felony under GS 15-54(a1)) as a habitual breaking and entering status offense punishable as provided under Article 2D of GS Chapter 14 (Habitual Breaking and Entering Status Offense). Effective December 1, 2017, and applies to offenses committed on or after that date. 

Part IV. Fingerprinting Upon Arrest

Amends GS 15A-502. Directs a court to order a person charged for an offense for which fingerprints are required, but not arrested for that offense, to submit to fingerprinting by the sheriff or other appropriate law enforcement agency at the earliest practical opportunity. Directs the sheriff to report a failure to appear for fingerprinting as ordered, and authorizes the court to initiate criminal contempt proceedings against the person.

Effective December 1, 2017, and applies to offenses committed on or after that date.

Part V. Citizen Warrants

Amends GS 15A-304, pertaining to warrants for arrest, to add new subsection (d1) establishing provisions to authorize a magistrate to issue a citizen's warrant or criminal summons, based solely on information supplied by a private person.

Requires the information provided by a private person to be supported by oath or affirmation and be sufficient for the magistrate to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it. Requires the information to be shown by one or more of the methods listed in subsection (d) for showing probable cause for a warrant for arrest, which are modified by the act to include information shown by affidavit, oral testimony under oath or affirmation presented by a sworn law enforcement officer before the issuing official (currently, does not specify the oral testimony under oath or affirmation be presented by a sworn law enforcement officer), or oral testimony under oath or affirmation presented by a sworn law enforcement officer to the issuing official by means of a clear audio and video transmission.

Directs that a citizen's summons rather than a citizen's warrant be issued unless: (1) the accused has a history of failure to appear before the court as required; (2) there is evidence that the accused is likely to escape or otherwise flee the State in order to avoid prosecution for the offense alleged; (3) there is evidence of imminent danger of harm to persons or property if the accused is not taken into custody; (4) the location of the accused is not readily discoverable, in that a criminal summons would be unlikely to be served before any court date assigned at the time of issue; (5) a relevant statute provides that arrest is mandatory for an offense charged; or (6) the seriousness of the offense constitutes grounds for an arrest warrant.

Amends subsection (a) to make organizational changes and to add the term "citizen's warrant." Amends subsection (c) to make the requirements concerning the statement of the crime apply to both a warrant for arrest and a citizen's warrant. Makes change to subsection (d) to clarify that those provisions apply to warrants for arrest. Makes technical changes.  

Effective December 1, 2017, and applies to warrants issued on or after that date.