Criminal Cases in North Carolina
- What is the difference between criminal and civil court?
In criminal court, the government (usually referred to as “the State”) prosecutes a person for breaking the law, with the possibility of punishment like jail time or a fine. In civil court, one party files a lawsuit against another, asking for money or for a court order against the other party.
In North Carolina, the district attorney for each district is responsible for prosecuting all criminal cases (and infractions, discussed below). In civil cases, the party who filed the case is responsible for pursuing it, and the parties must obtain their own attorneys, unless they plan to represent themselves in court.
- Can there be a civil lawsuit and criminal charges for the same event?
Yes. If someone is injured or their property is damaged due to a crime, that person also might sue the person who committed the crime. This civil lawsuit usually is intended for the victim to get money to make up for their loss and is a separate case from the criminal charge. See the Lawsuits Help Topic for more information. Additionally, victims of certain crimes like domestic violence, sexual assault, or stalking can file for civil orders requiring the defendant to stay away and have no contact with them. See the Domestic Violence Help Topic for more information.
- Who is the “defendant?”
In a criminal case, a defendant is a person who has been charged with a crime (or an infraction).
- What is a felony?
A felony is a serious crime that can carry severe punishments. In North Carolina, conviction for a felony also deprives a defendant of certain citizenship rights like the right to vote. Most of these rights, including the right to vote, can be restored after the sentence is fully served and any period of post-release supervision is completed.
- What is a misdemeanor?
A misdemeanor is a crime less serious than a felony. Like a felony, conviction for a misdemeanor might result in fines and/or jail time, though the punishments for most misdemeanors are much less severe than for felonies. One important difference between a misdemeanor and a felony is that conviction for a misdemeanor generally does not cause the defendant to lose the rights of citizenship.
- What is an infraction?
In North Carolina, an infraction is a non-criminal violation of the law. Many of the most commonly-charged traffic offenses are infractions, like failing to stop for a stop sign. Most infractions are punishable only by a fine (called a “penalty” in the case of an infraction), plus the payment of court costs. Although they are non-criminal violations, infractions generally are tried in criminal court and follow most of the same trial procedures as actual crimes (misdemeanors and felonies).
- How can I tell whether I was charged with a felony, a misdemeanor, or an infraction?
Whether or not an offense is a crime or infraction depends on the statute (law) that was violated. You could look up the statute, or you can consult an attorney, if the statute is not clear. However, one quick way to tell what kind of offense was charged is to look at the case number on your citation (ticket), warrant, or other charging document. The case number begins with the last two digits of the year in which you were charged. For instance, cases charged in 2018 will begin with “18.” If the next two characters are “CR,” you were charged with at least one criminal offense (either a felony or misdemeanor). If the next two characters are “IF,” you were charged only with infractions in that case. Note that you might be charged with a crime and an infraction in the same case (in which case the next two letters will be CR because of the criminal offense), or you might have charges under multiple case numbers, some of which might be criminal and some of which might be infractions.
- Can the victim dismiss the charges?
No. In a criminal or infraction case, the district attorney prosecutes the defendant on behalf of the State for a violation of the State’s laws. Therefore only the prosecutor or a judge has the power to drop or dismiss criminal charges. In some cases, the prosecutor might agree to dismiss the criminal charges if the victim requests a dismissal, but the prosecutor is not required to do so at the victim’s request. This is true both in cases with individual victims (such as assaults) and cases where the victim is a business (such as shoplifting).
- How do I get a copy of a police report?
Law enforcement arrest reports and investigative reports are kept by the investigating law enforcement agencies. You can request a copy of a police report from a law enforcement agency that investigated or otherwise was involved in the case. However, the complete report might not be a public record and might not be available, except under the rules for discovery in some criminal cases.
- How can I find out what happened in a court case?
You can look up the results of any North Carolina criminal case at the public computers located in each clerk of court’s office, or by contacting the clerk’s office in the county where the charge was filed to ask the clerk for assistance.
The Criminal Courts
- What are District Court and Superior Court?
North Carolina divides its trial court system into two levels: District Court and Superior Court. The two courts generally are located in the same courthouse in each county, but they have different judges and hear different types of cases. Misdemeanors and infractions are handled primarily in District Court before a judge, but a defendant convicted of a misdemeanor in District Court can appeal to Superior Court for a new trial. Felony cases often begin in District Court for pretrial matters, and some less serious felony cases can be resolved in District Court by a plea of guilty, but more serious felonies - and all felony trials - are resolved in Superior Court.
- What are the steps in a criminal case?
The exact procedures for a particular case will vary, depending on factors like whether the offense charged is a crime or infraction, a felony or misdemeanor, and whether or not the defendant was arrested or just summoned or cited to appear in court, among others. Defendants with questions about how their cases are likely to proceed should consult with their attorneys for advice.
The following is a simplified version of the basic steps of the adult criminal justice process, provided by the North Carolina Conference of District Attorneys.
- Offense – Crime is committed.
- Investigation – Continues throughout the process.
- Arrest – Defendant is charged. Bond is set after the arrest and can be reviewed at any court hearing.
- First Appearance – Bond is reviewed. Defendant advised of rights.
- Probable Cause Hearing – Felony cases only. Possible grand jury indictment.
- Entry of Plea – Plea negotiations and guilty pleas can happen any time before a verdict.
- Trial – Misdemeanor cases are generally tried in district court. Felony cases are presented in superior court.
- Sentencing – If convicted, the defendant will be sentenced by a judge.
- Appeal to a Higher Court – Not all cases are appealed.
Appearance Bonds And Posting Bail
- What is “bond?”
In most cases, when you have been arrested for a pending criminal charge, you have a right to have a judge or magistrate set conditions of pretrial release, commonly called “bail” or “bond.” This generally occurs when you are first arrested and brought before a judicial official (usually a magistrate) for an “initial appearance.” The conditions of release may include paying or promising money to the court as a way of ensuring that you will return for your court dates. If that condition is met, the court will allow you to be free from jail until the case has been resolved. Other conditions of release also can be imposed, like staying away from a victim or witness. If you do not follow the conditions set by the court, you can be returned to jail.
- Is there a “48-hour hold” after an arrest for domestic violence?
No. The law says that when a defendant is arrested for certain domestic violence crimes, only a judge can determine the conditions of the defendant’s release for the first 48 hours after arrest. The law does not require that the defendant be held for a full 48 hours, but during that initial time period, a magistrate or clerk cannot decide conditions of release. While magistrates generally are available at all times, most court sessions are held only during business hours. So, if you are arrested for a qualifying domestic violence offense when court is not in session, you might have to wait until the next session of court before conditions of release will be set. If a judge has not set conditions of release within those first 48 hours (for example, if you are arrested on a Friday evening), then a magistrate is authorized to set them once that period has passed.
- What is a written promise to appear or a custody release?
The condition of release for a “written promise” is exactly what its name says: a written agreement that you will come to court on your court date. It does not require the payment or promise of money. A written promise to appear is usually available only for lower-level crimes. If you violate the written promise to appear by not showing up to court, you will be subject to arrest and may have to meet more stringent conditions to be released again.
A “custody release” involves release of the defendant to a person or organization that agrees in writing to supervise him while the case is pending and to make sure he comes to court. Like a written promise, a custody release does not require the payment or promise of money in order for the defendant to be released, but a custody release can be combined with other conditions of release, like a bond.
- What is an unsecured bond?
An unsecured bond is a contract between you and the State. It is a written agreement that you will come to court, including the promise of an amount of money that you will owe the court if you fail to appear for any of your court dates. When a bond is unsecured, you do not have to pay the amount of the bond in advance in order to be released from jail.
- What is a secured bond?
A secured bond is a contract between you and the State, and sometimes a third party called a “surety” (discussed more in the next question). It is a written agreement to come to court that also requires an amount of money or other security be provided to the court in advance, before you can be released from jail.
- What if I can’t afford to post a secured bond?
If you cannot pay the full amount of a secured bond in advance with your own money (cash), you may give the State a mortgage on real property (land) that you own, such as your home, as security for your appearance in court. Using land as security for a bond will require recording a document called a “deed of trust” with the Register of Deeds in the county where the land is, which gives the State the right to foreclose on the property and sell it, if the bond is forfeited and the full amount is not paid. For more information about forfeiture, see “What happens to the bond if I don’t come to court?” later in this section.
If you do not have enough money or property to post your own bond, someone else, called a “surety,” may provide security on your behalf. The surety executes (signs) the bond paperwork along with you, promising the court that the surety will ensure your appearance at court and will be responsible for the amount of the bond along with you.
The surety might be someone like a family member or friend who is not compensated for posting the bond. The surety usually will have to provide the full amount of the bond in cash or a deed of trust to real property as security for the bond, just as you would if posting the bond on your own. In some counties, for bonds under a certain amount, a person might be allowed to serve as surety by executing the bond’s promise to pay without actually providing cash or a deed in advance. Before posting a bond, a person considering serving as a surety should consult an attorney about their options and the risks of doing so.
A surety also might be a bail bondsman, licensed by the North Carolina Department of Insurance to post bonds for compensation. A bondsman generally will require payment for providing this service, known as a “premium,” which usually is a percentage of the total amount of the bond. This premium is not returned when the case is over; it is the bondsman’s fee for posting the bond.
- What about electronic house arrest for pretrial release?
A secured bond sometimes is combined with “house arrest with electronic monitoring,” for which you would be required to wear a monitoring device (usually an ankle bracelet) that tracks your location and alerts the authorities, if you leave home or go to locations prohibited by your conditions of release.
In some cases (usually for charges of impaired driving), your conditions of release might prohibit you from consuming alcohol while the case is pending. In those cases, you might be required to wear a different type of monitoring device that monitors your body chemistry and detects the consumption of alcohol to ensure compliance with that condition of release.
- How can I have my bond reduced or modified?
Your attorney can ask a judge to modify your conditions of release (like reducing the amount of the bond), or you can ask the judge to do so yourself during a court appearance, if you do not have an attorney.
- How do I post bond?
The procedures for posting bond vary by county. A custodial official (jailer) or magistrate generally can tell you how to post bond, including how to contact potential sureties (family members, friends, or a bondsman) who might be able to post bond for you. Some more complicated bonds, like those secured by a deed of trust to land or a house, usually will need the help of an attorney to prepare.
- What happens to my bond if I don’t come to court?
Note: In addition to the forfeiture of bond discussed here, additional consequences of failing to appear are discussed below in the section about “Going to Court.” See the question, “What if I miss my court date?”
If you fail to appear in court as required, the court will order the bond “forfeited,” which means you may be required to pay the full amount of the bond to the court. The forfeiture might be recorded as a civil judgment against you, which the State can collect just like a judgment in a civil lawsuit. See the Lawsuits FAQ for more information about this process.
If the bond was posted with cash, the State simply will keep the cash to satisfy the judgment of forfeiture. If the bond was secured by a deed of trust to land, and the forfeiture is not paid in full, the State might foreclose on the land and sell it to collect the amount owed on the forfeiture.
If the bond was posted by a surety, then the surety is liable to the State for the bond along with you, so the State might attempt to collect from the surety’s assets (including foreclosing on property). If the surety was a bail bondsman, the bondsman will be required to pay the State the full amount of the bond (not just the premium), but you or your family members then might be required to pay the bondsman additional money as a result of any contract or agreement made when the bond was posted.
If you receive a notice from the court that a forfeiture has been ordered against you, you should consult an attorney immediately about your options.
- How do I get my bond back after the case is over?
If you appear as required at all court hearings in the case, and no forfeiture is ordered, then you and any surety will be released from the bond obligation at the end of the case. This means that if you paid a bond in cash with your own money, then after the case is fully resolved, the clerk’s office will mail you a check for the bond at the address in the case file. If someone like a family member posted cash on your behalf and executed the bond as a surety, the clerk’s office will return the money to the surety. If a deed of trust to property was provided as security, then once the case is fully resolved, the clerk’s office will cancel the deed of trust, which releases the State’s claim on the land.
If you only signed a written promise or unsecured bond, then no security was provided to the court, so there is nothing to return. If you or your family paid a bail bondsman to post bond, the bondsman generally will not give any money back; the bail bondsman keeps the premium as payment for the service of posting the bond. Similarly, if a private surety like a family member executed a secured bond but did not provide the court with actual security like cash or a deed of trust to their property, the bond simply terminates; there is nothing to return.
- How do I get a court-appointed attorney?
Generally, the judge will ask you at your first court date whether you want court-appointed counsel, to hire your own attorney, or to represent yourself. (In some counties, this step might occur at an initial appearance before a magistrate.) If you request a court-appointed attorney, you will need to provide information about your income and financial obligations, and the judge will decide whether you qualify for a court-appointed attorney.
- What types of cases qualify for court-appointed attorneys?
Anyone accused of a crime that carries a possible sentence of jail time or a fine over $500 may qualify for a court-appointed attorney. Because infractions cannot result initially in a sentence to jail time, a defendant charged only with infractions is not entitled to a court-appointed attorney.
- Do I have to pay for my court-appointed attorney?
If your case is dismissed or you are found not guilty, then you do not have to pay the cost of a court-appointed attorney. If you plead guilty or are found guilty, you must pay a $60 “appointment fee,” plus either an hourly rate for the time your attorney spent working on your case or a set amount (known as a “flat fee”) based on the type of case. If you are required to pay an hourly rate, your attorney will tell the judge when you are convicted how much time he or she spent on your case, so the judge can determine the total attorney’s fee for which you will be responsible.
- What if I can’t afford to pay?
The state can get a money judgment against you for the total amount of the fee determined by the judge. See the Lawsuits Help Topic for more information about this process. This does not affect your right to a court-appointed attorney in another criminal case.
- Can I fire my court-appointed attorney?
Yes, but you are not entitled to choose the court-appointed attorney you prefer. You can always hire a private attorney to represent you, even if you already have accepted court-appointed counsel. If you “fire” your court-appointed attorney, it is possible that you might not be appointed a new attorney and might be required to hire your own attorney or represent yourself.
- If I turn down a court-appointed attorney, can I change my mind?
You can request a court-appointed attorney at any stage of the case, especially if your financial situation has changed. However, the judge is not required to appoint an attorney for you later in the case if you initially turn down a court-appointed attorney and then change your mind.
- Will my court-appointed attorney be a public defender?
This varies by county. Some judicial districts have public defenders’ offices, and in those districts, most (but not all) court-appointed cases are handled by public defenders. In other judicial districts without a public defender’s office, private attorneys agree to take court appointments. If your district has a public defender’s office, your case still might be handled by a private attorney, if there is a conflict of interest or if the public defender’s office does not have an attorney available to take your case.
- What are the qualifications of court-appointed attorneys?
Court-appointed attorneys, including public defenders and private attorneys, are all licensed attorneys in North Carolina, and have the same educational and professional requirements as other attorneys.
- Can I represent myself in criminal court?
Yes, but that might be unwise. If you choose to represent yourself, the court will expect you to follow the same rules of evidence and procedure as a licensed attorney. Court officials like judges and clerks of court cannot help you with your case, such as by giving you legal advice about your rights and obligations, possible defenses, or the likely outcome of your case, or by helping you question witnesses properly at trial.
- How can I hire an attorney to represent me in criminal court?
See the Finding an Attorney Help Topic for information.
Going To Court
Note: This section is about court dates and scheduling in criminal and infraction cases, only. For general advice about how to prepare for court and what to expect on your court date, see the Going to Court Help Topic.
- When is my court date?
You can look up court dates for criminal cases here.
- What if I miss my court date?
If you miss your court date, or if you are late to court, the judge might treat it as a Failure to Appear (“FTA”) and issue an order for your arrest. If you later are found guilty, you can be charged a substantial, additional fee for having an FTA during your case. An FTA also can result in your bond being forfeited, as discussed above under the question, “What happens to my bond if I don’t come to court?” If the charges against you include any motor vehicle offenses, your FTA might result in revocation of your drivers license. Finally, missing a court date for any criminal case is itself a new criminal offense for which you could be charged.
If you miss court, a judge can “strike” the FTA and give you a new court date but is not required to do so. Your attorney can assist you in making this request, or if you do not have an attorney, you can file the request yourself with the clerk of court. You should bring any documentation (proof) of your reason for missing court. If the judge chooses to strike your FTA, the judge also can excuse you from paying the FTA fee, can “recall” any order for arrest that might have issued against you, and may decide not to forfeit your bond, but all of those options are within the court’s discretion; the court is not required to do any of them.
- Can I get a continuance?
The judge may agree to “continue” (postpone) your case to another court date. There is no guarantee that the court will grant a continuance, so you should be prepared to handle the case on your court date.
- Can I talk to the judge privately about my case?
No, you cannot have a conversation with the judge about the facts of your case. Neither you, your attorney, nor the prosecutor can talk to the judge about your case, unless all parties are present. If you choose to have a trial, you can present your case to the judge during the trial.
- Can I talk to the prosecutor about my case?
You can only talk to the prosecutor if you do not have an attorney representing you. If you have an attorney, the prosecutor generally is not allowed to speak to you without your attorney present, so your attorney will talk to the prosecutor for you. The prosecutor represents the other side of your case and therefore cannot give you legal advice and can use your statements against you.
- What is deferred prosecution?
A deferred prosecution agreement is an agreement between a defendant and the State. The prosecutor agrees to dismiss the charges against the defendant after a period of time if the defendant meets certain conditions, which may include things like receiving treatment, completing community service, paying restitution, having no contact with the victim, and not being charged with additional crimes. If you do not abide by the conditions of the deferral, the prosecution resumes, and you still could be convicted of the crime.
- What is a “90-96”?
A “90-96” is a type of deferral called a “conditional discharge” that is available to people who plead guilty or are found guilty in some drug-related cases, usually for first-time offenders. A conditional discharge is available for some non-drug offenses, also, but a “90-96” for drug offenses is the most common type of conditional discharge. For some cases, an offender is entitled to a conditional discharge, but in others, the judge decides whether to allow it. Typical requirements include a substance abuse assessment, drug treatment, drug screenings, community service, and not being charged with additional crimes. If you successfully complete the deferral by complying with all of the requirements imposed by the court, the charge will be dismissed.
Pleas, Conviction and Sentences
- Will my case go to trial?
Few criminal cases go to trial. Many cases are resolved through plea or deferral agreements, while some cases are dismissed by the prosecutor.
- What is a plea agreement?
A plea agreement is an agreement between you and the government. In it, you agree to plead guilty to a crime rather than having a trial. In exchange for your plea, the prosecutor might agree, for example, to dismiss or reduce some of the charges, or to a specific sentence.
- If I plead guilty, is that a conviction?
If you plead guilty to a criminal offense - a misdemeanor or felony - that counts as a conviction of the crime and it will appear on your criminal record. However, if you admit guilt as part of a deferral agreement or conditional discharge, as discussed above, and you satisfy all of the conditions, the charge eventually will be dismissed, and there will not be a conviction.
If you plead or are found responsible for only an infraction, which is a non-criminal violation, that is not a criminal conviction, but there might be other consequences. For example, being found responsible for a motor vehicle infraction might result in a suspension of your drivers license by the Division of Motor Vehicles or an increase in your car insurance premiums.
- If I get credit for time served, is that a conviction?
Yes. If you plead guilty in exchange for a sentence of “time served,” this is a conviction that will appear on your criminal record.
- Can I find out what the punishment will be in advance?
In some cases, the prosecutor and defendant agree on a sentence, which is included in the plea agreement. In other cases, there is no agreement, and the judge decides on the sentence only after the defendant pleads guilty or is convicted at trial. Judges must sentence defendants according to the sentencing laws that apply to each offense, which provide for a range of possible sentences, including fines, probation, and jail or prison time. Defendants may be required to pay additional money, such as for court costs and restitution to a victim. The sentencing options that apply to your case depend on the severity of the offense (with some significant differences between felonies and misdemeanors) and your prior criminal record. You can find the current sentencing charts for most criminal offenses here. Special sentencing rules apply to impaired driving cases.
- What is a “suspended sentence”?
When a judge imposes a sentence, the judge will decide on the length of the sentence, and then decide whether you should serve probation instead of an active sentence in jail or prison. If the judge places you on probation, this is called a “suspended sentence,” because the judge “suspends” the active sentence in jail or prison as long as you abide by all the conditions of probation. If you successfully complete probation, you will not be required to serve the time in jail or prison. Be aware that some conditions of probation may include periods of incarceration.
- What if I am ordered to pay a fine and costs?
If you are found guilty or responsible for an offense and required to pay a fine, court costs, or other monetary obligations, you should have the money ready to pay. Note that there is an additional, one-time fee added to cases for which the total monetary obligations are not paid on the date of conviction.
Payments can be made in person at the courthouse, by mail, or online. Note that the clerk of superior court cannot accept personal checks. For more information about methods of payment, see the question “How can I make a payment?” in the Court Costs Help Topic.
Appeals And Post-Conviction Relief
- Can I appeal my case?
If you were convicted of a misdemeanor in District Court, you can appeal your case to Superior Court for a new trial before a jury (or before a judge, only, if you waive your right to a jury trial). If you were convicted in Superior Court, you may appeal your case to the State’s appellate courts, the Court of Appeals and possibly the Supreme Court. This will result in a new trial only under certain circumstances, if the appellate courts find error in the record of your case.
- How do I file an appeal to Superior Court?
You can tell the judge in open court that you want to appeal, or you can file a notice of appeal with the clerk of court within 10 days of your conviction. Some courts will adjust your conditions of release for the appeal, which may require that you post an additional or increased bond.
- Can I appeal my case to the Court of Appeals?
Defendants who are convicted in Superior Court have the right to ask the State’s appellate courts to review their case. This is not a new trial. The appellate court makes its decisions based on written legal arguments and sometimes based on oral arguments from attorneys. If you want to appeal to the appellate courts, you can give notice of appeal in court after your case is decided, or in writing to the clerk’s office afterward (generally within 14 days of the court’s decision). To ensure that your appeal is valid, you must follow the procedures outlined in the North Carolina Rules of Appellate Procedure. If the court has ordered you to serve an active sentence in jail or prison, you must begin serving that time during the appeal, unless the court decides that it is appropriate to release you on bond.
- Can I get a court-appointed attorney for my appeal to the Court of Appeals?
Yes, a judge can appoint the Appellate Defender to represent defendants who are unable to pay for an attorney in appellate cases. Your appellate attorney will generally not be the same attorney who represented you in District or Superior Court. If your appeal is unsuccessful, you will be required to pay the hourly rate for your court-appointed appellate attorney.
- What is a Motion for Appropriate Relief?
A motion for appropriate relief (MAR) is a request filed by a defendant asking a judge to undo a conviction or change a sentence. A judge can grant your MAR only if you can show legal grounds: for instance, that you received ineffective assistance of counsel or your sentence was not calculated according to the sentencing laws that applied to your case. You can view all of the possible grounds for a Motion for Appropriate Relief here.
- Can I get a court-appointed attorney for a Motion for Appropriate Relief?
Yes, but if you do not hire a private attorney to represent you, you must first file the motion yourself. If a judge reviews your motion and determines that it is not frivolous, the judge will appoint an attorney to represent you. If the judge decides that all the claims in your motion are frivolous, the judge will deny the motion.