101.1Jurisdiction: Territorial, Personal, & Subject Matter
- The court must have all three types of jurisdiction (territorial, personal, and subject matter) to be able to hear a case.
- North Carolina courts have territorial jurisdiction if there is a significant nexus to NC, even when a crime occurs primarily in another state.
- A criminal court acquires personal jurisdiction over a defendant when he is brought before the court.
- Subject matter jurisdiction depends upon the existence of a facially valid charging document.
The term “jurisdiction” is used broadly to cover a wide variety of topics, but as used here it essentially means the authority of the State of North Carolina to try a defendant for a criminal offense. Jurisdiction is simply the “court’s power to decide a case or issue a decree.” Black’s Law Dictionary 927 (9th ed. 2009).
For more information on the “jurisdiction” that individual judges or police officers have to take particular actions, see the related entry on Jurisdiction of Judges and Officers. Also note that the topic of jurisdiction is distinct from venue, which refers to the appropriate place of trial within the state. For more information on the difference, see the related entry on Rules for Determining Venue.
There are three basic types of jurisdiction, all of which must exist for the court to be able to hear a case.
Refers to whether the criminal offense occurred within the sovereign boundaries of North Carolina, or has a close enough nexus to the state to justify the state punishing the crime.
Refers to the court’s power to act upon the defendant, which generally requires that a valid criminal process be properly served on the defendant.
- Subject Matter
Refers to the court’s authority to hear the type of case or matter in question, and addresses which cases are properly heard in which courts.
Neither territorial jurisdiction nor subject matter jurisdiction can be “waived” by the defendant. See State v. De La Sancha Cobos, 211 N.C. App. 536 (2011). Objections to either of these types of jurisdiction may be raised by the defendant at any time, or considered sua sponte by the court. See State v. Boone, 310 N.C. 284 (1984); superseded by statute on other grounds, see State v. Oates, 366 N.C. 264 (2012). However, a defendant can waive personal jurisdiction by voluntarily entering or appearing in North Carolina. See State v. Speller, 345 N.C. 600 (1997).
The defendant has a Sixth Amendment right to a trial by jury in “the state and district wherein the crime shall have been committed.” See State v. Darroch, 305 N.C. 196 (1982). This requirement is designed to avoid having defendants punished in two different court systems for the same offense (which would not technically be double jeopardy, because the states are separate sovereigns, but is still generally disfavored). See State v. Batdorf, 293 N.C. 486 (1977); Heath v. Alabama, 474 U.S. 85 (1985); see also G.S. 15A-134, 90-97 (providing statutory bars against multiple prosecutions in different states).
The basic rule is that North Carolina courts have territorial jurisdiction over an offense that happens in North Carolina, or if a part of the crime – that is, any of the “essential acts” forming the offense – happened in this state. See, e.g., State v. White, 134 N.C. App. 338 (1999) (jurisdiction over heroin trafficking offense where drugs were prepared and sold in North Carolina, even though drugs and defendant were both seized in New Jersey), habeas corpus granted sub nom., White v. Hall, 2010 WL 2572654 (EDNC 2010); State v. Rick, 342 N.C. 91 (1995); see also State v. Tucker, 227 N.C. App. 627 (2013) (North Carolina had territorial jurisdiction over embezzlement charge because defendant had a “duty to account” in this state, even though property was actually misappropriated in another state). The “essential acts” doctrine for conferring territorial jurisdiction is codified in several statutes. See G.S. 15A-134 (jurisdiction to try an offense that occurs partly in and partly outside North Carolina); G.S. 15-131 (jurisdiction to try a homicide where person is assaulted in this state but later dies in another state); G.S. 15-133 (jurisdiction to try a homicide where a person is assaulted outside the state but later dies in this state); G.S. 15-132 (action taken in this state injuring a person in another state).
On the other hand, it is not enough to confer jurisdiction over an offense committed outside North Carolina simply because a joinable offense did happen within the state. See, e.g., State v. Lalinde, 231 N.C. App. 308 (2013) (victim was kidnapped in North Carolina, then taken to Florida and raped – North Carolina had territorial jurisdiction for the kidnapping offense, but not the rape); see also State v. Bright, 131 N.C. App. 57 (1998) (error not to submit jurisdiction issue to jury where kidnapping happened in North Carolina but evidence showed that rape may have occurred in another state); State v. Williams, 74 N.C. App. 131 (1985) (North Carolina could not prosecute defendant for possession of a stolen motor vehicle after he was found in possession of the car in Washington D.C. as there was no evidence to show he ever possessed it inside North Carolina).
- Special Issues Involving Territorial Jurisdiction
- Inchoate Offenses (attempts, solicitation, etc.)
In cases where the crime consists primarily of mental acts committed outside North Carolina, the state still has jurisdiction to prosecute those acts if they resulted or would have resulted in detrimental harm occurring within this state. See, e.g., State v. Darroch, 305 N.C. 196 (1982) (finding jurisdiction did exist where murder plot took place in Virginia, but goal was to kill a victim in North Carolina); relying on Strassheim v. Daily, 221 U.S. 280 (1911).
North Carolina may prosecute any member of a conspiracy if any of the co-conspirators committed an overt act in furtherance of the conspiracy within the state. See State v. Drakeford, 104 N.C. App. 298 (1991) (jurisdiction existed where drug deal was arranged in North Carolina, even though drugs were actually procured out-of-state).
- Continuing Offenses
A continuing offense is a breach of the criminal law which subsists for a definite period of time or involves numerous similar occurrences (e.g., drug trafficking, kidnapping and false imprisonment, failure to pay child support). See State v. Manning, 139 N.C. App. 454 (2000), aff’d per curiam, 353 N.C. 449 (2001). If any part of a continuing offense happens inside North Carolina, then the state has concurrent jurisdiction over the offense, along with all the other involved states. See State v. Johnson, 212 N.C. 566 (1937).
- Concurrent Jurisdiction
When an offense occurs in both North Carolina and another state, North Carolina has concurrent jurisdiction with the other state. There is no inherent double jeopardy bar to the prosecution, since the two states are separate sovereigns. See Heath v. Alabama, 474 U.S. 82 (1985); but see State v. Batdorf, 293 N.C. 486 (1977) (successive prosecutions would violate the spirit, if not the letter, of double jeopardy protections). Additionally, the full faith and credit clause does not require one state to accept the judicial determination of the other state. Id. However, note that even if concurrent jurisdiction exists, North Carolina has a statutory restriction which dictates that it may only try the person if he has not already been placed in jeopardy for the same offense by another state. G.S. 15A-134; see also G.S. 90-97 (imposing similar restriction if defendant has already been prosecuted federally or by another state).
- Federal Enclaves
A federal enclave is a building or geographical area which is physically located within the state but is under the control of the federal government, and over which the U.S. government has declared jurisdiction (e.g., federal courthouses, post offices, and military bases). See State v. Smith, 328 N.C. 161 (1991). In some cases, the federal government has exclusive jurisdiction to prosecute offenses on federal enclaves, in which case the state has no ability to prosecute the case. See United States v. Unzueta, 281 U.S. 138 (1930). Whether jurisdiction is (i) exclusive to the federal government, (ii) concurrent with the state, or (iii) reserved exclusively to the state depends largely on when the property was acquired, and whether the state took steps to actively retain its jurisdiction at the time the property was granted. Each case has to be evaluated individually, but for general reference purposes only, and in very broad terms: (i) for most enclaves created before 1940, jurisdiction is exclusively federal; (ii) for most enclaves created between 1940 and 2005, federal jurisdiction was not automatic but rather had to be affirmatively asserted by the federal government; (c) for enclaves created from 2005 on, the state has adopted a statute asserting concurrent jurisdiction as part of the grant (see G.S. 104-7). For more detailed discussion on this topic, see here.
If you have any questions about whether the offense you are prosecuting may have occurred on federal property, or you have reason to believe that the federal government may be prosecuting the defendant for the same offense, you should contact the appropriate U.S. Attorney’s Office as early in the process as possible so that you can decide how best to proceed in your own case. Contact pages for each of the three North Carolina districts are below:
Western District Middle District Eastern District
- Inchoate Offenses (attempts, solicitation, etc.)
- Special Statutes Involving Territorial Jurisdiction
- G.S. 14-453.2 (for computer crimes, “[a]ny offense . . . committed by the use of electronic communication may be deemed to have been committed where the electronic communication was originally sent or where it was originally received in this State”)
- G.S. 14-113.13 (“In any prosecution for violation of G.S. 14-113.13 [financial transaction card fraud], the State is not required to establish and it is no defense that some of the acts constituting the crime did not occur in this State or within one city, county, or local jurisdiction.”)
- G.S. 14-202.3 (“The offense [of solicitation of a child by a computer] is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.”)
- G.S. 15-131, -132 (old statutes providing that North Carolina has jurisdiction when A assaults B in North Carolina but B dies in another state, or when A launches an object from North Carolina that strikes B in another state)
As a general rule, the defendant must be physically present to plead guilty or be put on trial. Because of this requirement, any technical defects in service or notice (e.g., lack of officer’s signature on citation, improper service of arrest warrant) are not considered constitutionally significant, and are not usually an issue once the defendant is actually present in court. See State v. McKenna, 289 N.C. 668 (1976), vacated on other grounds, 429 U.S. 912 (1976); State v. Ferguson, 105 N.C. App. 692 (1992); State v. Able, 13 N.C. App. 365 (1971).
Defendants in North Carolina may not be tried in abstentia because they have constitutional rights (Due Process, Confrontation Clause) to be present at their trial. See State v. Richardson, 330 N.C. 174 (1991). However, in all cases except capital murder, a defendant may waive his or her right to be present at trial by absconding, in which case the trial may continue to conclusion in their absence. See State v. Stockton, 13 N.C. App. 287 (1971); State v. Payne, 320 N.C. 138 (1987); see also State v. Meyer, 330 N.C. 738 (1992) (where defendant in capital murder case escaped during sentencing, mistrial was declared and new sentencing hearing held after he was recaptured).
For more information about conducting a trial in the defendant's absence, see the related entry on Defendant's Rights in Court: Right to Be Present. For more information on extraditing defendants from outside North Carolina back to the state for criminal prosecution, see the related entry on Extradition. For more information on placing detainers on defendants who are incarcerated outside the state of North Carolina, see the related entry on Interstate Compact and Detainers.
Subject Matter Jurisdiction
As noted above, subject matter jurisdiction refers to a court’s authority to hear the type of case or matter in question, and addresses which cases are properly heard in which courts. Juvenile matters and misdemeanor offenses generally are in the jurisdiction of the district court. Felony offenses (depending on severity and manner of disposition) generally are in the jurisdiction of the superior court. The statutory authority for subject matter jurisdiction and the types of cases which can be properly heard in each division of the court are set forth in more detail below.
- District Court
Exclusive and original jurisdiction over any juvenile delinquency or undisciplined allegation, including “extended jurisdiction” which may give the court jurisdiction over the juvenile even after he or she reaches age 18, in certain circumstances. See G.S. 7B-1600, 7B-1601, 7B-1602. Juveniles over the age of 13 who are alleged to have committed an offense which would be a felony if committed by an adult may also be transferred to superior court for trial as an adult. See G.S. 7B-2200, 2203.
Exclusive and original jurisdiction for all infractions, except for infractions which are a lesser-included offense of, or related to, another crime with jurisdiction in the superior court (e.g., speeding infraction related to felony fleeing to elude), in which case the superior court may accept a plea to the infraction. See G.S. 7A-253; 271(d).
Exclusive and original jurisdiction for all misdemeanors, except for: (i) misdemeanors joined with felonies; (ii) misdemeanors that are lesser-included offenses of indicted felonies; and (iii) misdemeanors initiated by a grand jury presentment and subsequent indictment. See G.S. 7A-271; 272.
- Felonies – prior to indictment
The district court has administrative responsibilities for any pending felony charge (e.g., a defendant who is arrested on a warrant and is awaiting indictment) until the case is bound over to superior court. See, e.g., G.S. 15A-606(c) (binding over on waiver of probable cause); 15A-612(a)(1) (binding over on finding of probable cause). Until that occurs, the district court is responsible for addressing pretrial release conditions, holding a probable cause hearing (or accepting defendant’s waiver), appointing counsel, etc. In some cases, the district court may also be asked to rule on more substantive matters such as a motion to suppress or defendant’s capacity to proceed. The superior court is not, however, bound by any such district court ruling. See State v. Lay, 56 N.C. App. 796 (1982).
- Felony guilty pleas
With the consent of all parties, the district court may accept guilty pleas to Class H and I felonies. G.S. 7A-272(c). An appeal from such a plea is to the Court of Appeals and not the superior court. G.S. 7A-272(d).
- Probation violations
If a defendant who pleaded guilty to an H or I felony in district court and was placed on probation is subsequently charged with violating that probation, the superior court has jurisdiction to hear the violation. However, with the consent of the state and the defendant, the district court may hear the violation. G.S. 7A-271(e). If a district court revokes a defendant’s probation in such a case, appeal is to superior court for a de novo hearing. G.S. 15A-1347; State v. Hooper, 358 N.C. 122 (2004); State v. Harless, 160 N.C. App. 78 (2003).
- Motions for Appropriate Relief
If the original conviction was in district court, the district court may act on a related motion for appropriate relief. G.S. 15A-1413(a); 1414(b)(4); 1417(c); In re Fuller, 345 N.C. 157 (1996).
- Superior Court
- Felonies and misdemeanors
The superior court has general jurisdiction over all felonies, as well as any misdemeanors which are lesser-included offenses of the felony, joined with the felony, or initiated by grand jury presentment. G.S. 7A-271(a).
- Misdemeanor appeals
The superior court has jurisdiction to hear misdemeanor cases appealed from district court. G.S. 7A-271(b). The superior court is limited to hearing the same (or a lesser-included) offense that was originally convicted in district court. See State v. Hardy, 298 N.C. 191 (1979); State v. Reeves, 218 N.C. App. 570 (2012). The state may not proceed to trial on a new or different offense, or proceed on a charge that was previously dismissed in district court. See State v. Phillips, 127 N.C. App. 391 (1997); State v. Martin, 97 N.C. App. 19 (1990).
Plea agreement exception
If the defendant appeals from a conviction arising out of a plea agreement in district court, the superior court does have jurisdiction over misdemeanors that were dismissed, reduced, or modified pursuant to the agreement. See G.S. 15A-1431(b); 7A-271(b). Thus, a defendant may not negotiate a dismissal as part of a plea agreement in district court, and then appeal to superior court for trial de novo free of the dismissed charges. If the defendant appeals from a negotiated plea agreement in district court, a prosecutor who wishes to pursue charges that were dismissed pursuant to that agreement must reinstate those charges. Since G.S. 7A-271(b) explicitly states that the prosecution may proceed on the dismissed charges “in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement,” it should not be necessary to prepare a new charging instrument. You should be able to simply strike through the prior markings indicating that the charge was “dismissed” or “V/D” and replace that with “reinstated for trial,” but consult your local rules of practice to make sure.
If the plea in district court was to a misdemeanor, but now the state wants to proceed on a felony in superior court, see Jonathan Holbrook, "Charging the Felony After a Misdemeanor Appeal," N.C. Criminal Law Blog, April 10, 2019.
- Misdemeanor appeal and “related charge”
When a defendant appeals from a misdemeanor conviction in district court, the superior court may accept a guilty plea to (but may not conduct a trial on) any lesser-included offense, or a “related charge” if the prosecution prepares and files a criminal information. See G.S. 7A-271(a)(5); 15A-922(g); State v. Craig, 21 N.C. App. 51 (1974). For example, this circumstance may arise when the negotiated plea is for a different offense which is not a lesser-included offense of the charged offense (e.g., a negotiated plea by criminal information to a related charge of disorderly conduct, when defendant was originally charged with simple affray).
What counts as a “related charge?”
The term is not expressly defined in G.S. 7A-271(a)(5); however, a similar provision in G.S. 7A-271(a)(3) may provide some guidance, since it applies to misdemeanors which could be “properly consolidated for trial with a felony under G.S. 15A-926(a),” a statute which in turn applies to misdemeanors which are “based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.”
- Other pending charges
When a defendant pleads guilty in a case which is properly before the superior court, he may also request to plead guilty in the same proceeding to some or all of the other cases he has pending, even if those cases would otherwise be within the exclusive jurisdiction of the district court. See G.S. 15A-1011(c). [This statute also permits defendants to plead guilty to charges pending in other districts as well with the consent of the prosecutor in the charging district.]
- Misdemeanor joined with felony
If the superior court has jurisdiction over a misdemeanor because it is joined with a felony, then the court retains jurisdiction over the misdemeanor even if the felony is dismissed after the trial has begun. See State v. Pergerson, 73 N.C. App. 286 (1985). The misdemeanor must, however, be properly before the superior court, meaning it was either included with the felony indictment or charged separately by information or presentment. See G.S. 15A-922(g); State v. Price, 170 N.C. App. 57 (2005); State v. Bowden, 177 N.C. App. 718 (2006).
If the related felony charge is dismissed before the case proceeds to trial, then the superior court no longer has jurisdiction to conduct a trial on the remaining misdemeanors and the case must be transferred to district court. See G.S. 7A-271(a), (c); State v. Amstrong, 248 N.C. App. 65 (2016).
- Misdemeanor initiated by presentment
A presentment is a written accusation by the grand jury, accusing defendant of one or more crimes. A grand jury presentment is submitted to the prosecutor, who is statutorily required to investigate the allegation and submit an indictment back to the grand jury, if warranted. A misdemeanor initiated by presentment and then charged by indictment must be tried in superior court. See State v. Petersillie, 334 N.C. 169 (1993); State v. Guffey, 283 N.C. 94 (1973). (For more information on the indictment process, see here.) The superior court acquires jurisdiction over the offense even if the defendant was already charged for the same offense in district court by other means (warrant, citation, etc.). See State v. Cole, 262 N.C. App. 466 (2018); State v. Gunter, 111 N.C. App. 621 (1993). The defendant may only be tried in superior court for matters in the indictment which are “substantively identical” to the accusations in the original presentment. See State v. Birdsong, 325 N.C. 418 (1989).
- Misdemeanor guilty pleas in lieu of a felony charge
The superior court has jurisdiction to accept a guilty plea to a misdemeanor tendered in lieu of a felony charge. Thus, the court may accept a guilty plea from a defendant who was originally charged with a felony but pleads guilty to a misdemeanor pursuant to a plea agreement with the state. See G.S. 7A-271(a)(4); State v. Snipes, 16 N.C. App. 416 (1972).
If the defendant is pleading to a misdemeanor in lieu of a felony, the state should file a dismissal of the original indictment and submit a new criminal information charging the misdemeanor, to which the defendant then pleads. See Snipes, 16 N.C. App. at 418, quoting State v. Bethea, 272 N.C. 521 (1968) (noting that "whether the plea be guilty or not guilty, in all cases the better practice is the preparation of an information"); see generally State v. McCulloch, 756 S.E.2d 361 (N.C. App. 2014) ("'[t]he pleading in felony cases and misdemeanor cases initiated in the superior court division must be a bill of indictment, unless there is a waiver of the bill of indictment as provided in [N.C. Gen. Stat. §] 15A-642,' in which case 'the pleading must be an information'").
- Felonies and misdemeanors