State v. Fearns, COA23-650, ___ N.C. App. ___ (Mar. 5, 2025)

In this Granville County case, defendant appealed her conviction for embezzlement, arguing that the trial court lacked authority to enter the order denying her motion to dismiss because it was not issued by the superior court judge who held the hearing. The Court of Appeals vacated the trial court’s order denying Defendant’s motion and remanded the matter for a new hearing on the motion.

In 2008, police began investigating defendant, an employee of a law firm, for allegedly embezzling approximately $50,000 from client trust funds. Due to various complications, including personnel changes and difficulty obtaining records, charges were not brought until January 2019. Defendant moved to dismiss, alleging the delay prejudiced her due to the unavailability of key documents. The trial judge who presided over the motion hearing in January 2020 orally denied it and asked the State to draft the order. This trial judge retired in October 2020. In September 2021, a new trial judge signed the order denying the motion to dismiss, with a notation that the order was issued by the previous trial judge and a citation to Rule 63 of the Rules of Civil Procedure. Defendant was subsequently convicted, and appealed.

The Court of Appeals concluded the second trial judge did not have the authority to sign the order denying defendant’s motion to dismiss. Because Rule 63, which allows a judge to perform the duties of another judge under certain circumstances, applies only to civil cases, “this issue is not governed by Rule 63.” Slip Op. at 10. The court also noted that “[t]he Rules of Criminal Procedure do not address the authority of one judge to enter an order on behalf of another judge in this context,” and the State did not provide any other authority in support. Id. at 11. Looking to State v. Bartlett, 368 N.C. 309 (2015), the court applied the principle that “the judge who presided at the hearing must make the findings of fact.” Slip Op. at 12. Because the second trial judge here did not have authority to enter the order denying defendant’s motion, the court vacated her conviction and remanded for a new hearing on the motion.

Judge Stading concurred by separate opinion, emphasizing “a tempered application of State v. Bartlett” as that case focused specifically on motion to suppress statutes. Id. at 14.