North Carolina’s First Appearance Process Amended for Second Time in this Legislative Session

In this earlier blog post, I discussed changes made to North Carolina’s first appearance process, to be effective for criminal processes served on or after December 1, 2021. Additional amendments have been made in new legislation.

In Session Law 2021-182 (S183), Section 2.5.(a) revised G.S. 15A-601 as previously amended by S.L. 2021-138.

Defendants charged with misdemeanors and in custody to get first appearance

This amendment does not affect a significant change made by S.L. 2021-138–the expansion of first appearance to include defendants charged with misdemeanors who are in custody. Under current law, only criminal defendants with felony charges are required to get first appearance.

Exception provided for when courthouse is closed for transactions for a period longer than 72 hours

S.L. 2021-138 changed the deadline for first appearance from the current period of 96 hours to 72 hours. This new amendment revises G.S. 15A-601(c) to provide that if “the courthouse is closed for transactions for a period longer than 72 hours,” first appearance must be held within 96 hours after the defendant is taken into custody or at the first regular session of the district court in the county, whichever is first. So, a longer period will be allowed for first appearances on holiday weekends or when anything closes the courthouse to transactions for more than 72 hours.

Magistrates removed as judicial official who may conduct first appearance

Further, S.L. 2021-182 reverses one change made in the previous amendment of this statute. It removes magistrates from G.S. 15A-601(e) as a judicial official who may conduct first appearance if a district court judge is “not available.” The clerk of court remains authorized to conduct first appearance when a district court judge is not available.

Neither the statute nor case law defines “not available.” In practice, that might mean a judge is sick, in a training session, too far away to conveniently appear for a hearing, or in any number of situations that might reasonably signify not being available. Also, for purposes of G.S. Chapter 15A, clerk includes “any clerk of superior court, acting clerk, or assistant or deputy clerk” [G.S. 15A-101(2)].

Another statute listing window for first appearance as 96 hours changed

S.L. 2021-182, Section 2.5.(b) adds something new, though consistent with the new legislative preference for a 72-hour window for first appearances. Currently G.S. 15A-534(d2) (procedures for determining conditions of pretrial release) provides for a 96-hour window for first appearance to be held for an in-custody defendant charged with a felony offense and currently on probation for a prior offense for whom a judicial official found insufficient information to determine whether pretrial release should be granted. As with other kinds of first appearance, this amendment changes that window from the current 96 hours to “72 hours or 96 hours if the courthouse is closed for transactions for a period longer than 72 hours.”

The upshot of all this is that effective for criminal processes served on or after December 1, 2021:

— First appearance requirements statewide will apply to defendants charged with misdemeanors and in custody as well as those charged with felonies.

–The new window for first appearance will be 72 hours, instead of the current 96 hours, except in instances where the courthouse is closed to transactions for longer than 72 hours. Then, the window for first appearance will continue to be 96 hours.

–District court judges will generally conduct first appearance, with the clerk of superior court authorized to do so if a district court judge is not available in the time window, as is the case under current law. Magistrates are no longer listed as an official who may conduct first appearance.

— First appearances conducted pursuant to G.S. 15A-534(d2) (felony defendants on probation being held in custody because there is insufficient information to determine pretrial release conditions) will also be covered by the 72-hour window, with the same exception of 96 hours if the courthouse is closed to transactions for longer than 72 hours.

The NC AOC Legal Counsel Office issued a memorandum on this topic last week. It includes helpful information about what might be needed in local case management plans as well as changes that this legislation will require to NCAOC forms

You can find previous posts about first appearance by searching this site.

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