Court of Appeals Says Magistrate’s Order Does Not Toll Statute of Limitations

The court of appeals held yesterday in State v. Turner, __ N.C. App. ___ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations for misdemeanors. Because the defendant was not tried within two years of the offense, the appellate court ruled that the trial court properly dismissed the charges. This opinion is as big as surprise to criminal procedure experts as the outcome of last month’s presidential election was to pollsters. Does it mean that district courts must dismiss charges for misdemeanor offenses that occurred more than two years ago?

No – or at least not yet.  The North Carolina Supreme Court issued a stay yesterday, putting State v. Turner on ice for the moment.  While we wait to see what happens next, let’s take a look at what the court of appeals said in Turner.

Facts and procedural history. Turner was cited for driving while impaired on August 7, 2012. He was cited, arrested and brought before a magistrate for an initial appearance. After finding probable cause to believe the defendant committed the offense of impaired driving, the magistrate issued a magistrate’s order, which is the process required by G.S. 15A-511(c)(3).

On November 26, 2014, Turner moved to dismiss the charges on the basis that the statute of limitations had expired. The district court judge agreed, and a superior court judge affirmed that determination.The State appealed from the dismissal of the charges.

Court’s analysis. The court of appeals noted that G.S. 15-1 sets forth the statute of limitations for misdemeanors. The statute, which has not been amended since 1943 and thus pre-dates the creation of district court, requires that “all misdemeanors except malicious misdemeanors [] shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards . . . .”  The court then proceeded to consider two state supreme court cases construing the provision.

State v. Hedden, 187 N.C. 803 (1924). The state supreme court in Hedden held that a warrant issued by a magistrate charging the defendant with abandonment of his wife and children did not toll the statute of limitations. The defendant in Hedden was tried for the offense in superior court based upon an indictment issued more than two years after it occurred. The supreme court held this was error, and that the defendant’s motion to dismiss should have been allowed. The court reasoned that G.S. 15-1 had “no saving clause . . . as to the effect of preliminary warrants before a justice of the peace or other committing magistrate, and . . .  the law must be construed and applied as written.” Id. at 65. Thus, the court concluded that there “must be a presentment or indictment within two years from the time of the offense committed and not afterwards.” Id.

State v. Underwood, 244 N.C. 68 (1956). Hedden was revisited decades later in State v. Underwood, 244 N.C. 68 (1956). Underwood was charged with impaired driving in a warrant issued by the clerk of a county recorder’s court. He was found guilty and appealed to superior court, where he argued that the statute of limitations barred his prosecution as the alleged offense occurred more than two years earlier and no indictment or presentment had been found by the grand jury. The superior court rejected his argument, and Underwood was tried and adjudged guilty. He appealed. The state supreme court affirmed his conviction, holding “that in all misdemeanor[] cases, where there has been a conviction in an inferior court that had final jurisdiction of the offense charged, upon appeal to the superior court the accused may be tried upon the original warrant and that the statute of limitations is tolled from the date of the issuance of the warrant.” Id. at 70. The Underwood court distinguished Hedden on the basis that the defendant there could not have been tried in superior court upon the original warrant.

Back to Turner. The court of appeals stated that “[i]n the roughly sixty years since Underwood was decided, that case has only been held to apply to indictments, presentments, and warrants; never once has it been applied to citations or other forms of criminal pleading.” The court then said that G.S. 15-1 was explicit in requiring that an indictment or presentment be issued within two years. Plus, the court noted that Hedden said the statute had to be applied as written.

The court then held that the “issuance of a citation did not toll the statute of limitations.” Because the State did not prosecute Turner in two years, it was barred from proceeding.

Was it a citation or a magistrate’s order? The court of appeals in Turner repeatedly refers to the charging document as a citation. Yet the opening paragraph of the court’s opinion states that the citation was converted into a magistrate’s order. A magistrate’s order is the functional equivalent of a warrant for arrest issued after a defendant has already been arrested. It is not clear why a warrant for arrest would operate to toll the statute of limitations period but a magistrate’s order would not.

Even if Turner had been charged by citation alone, I’d still find the opinion surprising.

Up until now, I understood “the critical date for purposes of determining whether the statute of limitations has run [to be] the date on which a defendant is properly charged with committing a criminal offense.” State v. Taylor, 212 N.C. App. at 249–50 (2011). That’s the language the court used in dicta in Taylor, and it comports with the manner in which Chapter 15A permits misdemeanor offenses to be charged.

How would Turner impact defendants charged with misdemeanors? If Turner becomes law, many defendants will benefit initially from the dismissal of misdemeanor charges that have been pending for more than two years. In the longer run, however, many defendants who otherwise would have been cited and released could wind up with arrest records. That’s because the State is likely to seek issuance of a warrant for arrest rather than rely on a citation that does not toll the statute of limitations.

Of course, if the General Assembly doesn’t approve of the outcome in Turner, it can re-write G.S. 15-1 to carry out its intent for future cases. Perhaps it is time for a remodel anyway. It has been a while since the last update.

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