Q: I have an OFA for FTA (misdemeanor) from 1998 will statute of limitations apply?

A: GREAT QUESTION

There is an interesting case currently pending in the NC Supreme Court regarding the State obtaining indictments within a certain period of time, even on misdemeanor cases (North Carolina v. Turner)

Normally a Failure to Appear FTA resulting in an Order for Arrest would stay prosecution of a legal matter, pending the arrest of the accused; but, it would be an interesting argument to assert an indictment would still be required, even with an FTA.

Here's more info on Indictments in North Carolina: https://www.carolinaattorneys.com/what-does-indictment-mean-in-north-carolina.html

When a defendant fails to appear in court after being charged with a misdemeanor offense, the court often issues an order for his or her arrest. G.S. 15A-305.

If the order remains unserved and the prosecutor believes the defendant cannot be readily found, he or she may enter a dismissal with leave for nonappearance pursuant to G.S. 15A-932(a). A dismissal with leave for nonappearance removes the case from the court’s docket, but “all process outstanding retains its validity.” G.S. 15A-932(b).

In addition, “all necessary actions to apprehend the defendant, investigate the case, or otherwise further its prosecution may be taken, including the issuance of nontestimonial identification orders, search warrants, new process, initiation of extradition proceedings, and the like.”

Turner did not explore the interplay between the dismissal with leave statute and the statute of limitations. The State may argue that the provision in G.S. 15A-932(b) stating that “all process outstanding retains its validity” operates to toll the statute of limitations as of the date of the dismissal.

The defendant may argue, on the other hand, that the State was required to obtain a presentment, indictment or warrant within two years of the offense if it wished to toll the limitations period.

To be clear, that is SPECULATIVE. The current appeal, and the associated legal and factual basis, is considerably more clear.

Frankly, the best thing to do is retain legal counsel in New Bern. Each case is different, just like each person charged with a case is different.

It makes sense to consult with a lawyer, have them take at the specifics, and see what they can do to help. Either way, I suspect the outstanding Order for Arrest will need to be addressed, irrespective of some novel legal theory challenging a complicated Statute issue.

Bill Powers

Criminal Defense Lawyer Charlotte NC