103.1Types of Criminal Pleadings

For templates with recommended language to use when charging specific criminal offenses, please see the related entry on Arrest Warrant and Indictment Forms.

Overview

Criminal pleadings are the tools the state uses to charge criminal offenses.  In misdemeanor cases tried in district court and on appeal for trial de novo in superior court, pleadings include arrest warrants, criminal summonses, citations, magistrate’s orders, and statements of charges.  In felony cases which are initially tried in superior court, the state must obtain an indictment or criminal information.

1.  A properly-drafted criminal pleading fulfills three main functions:

1. Provides the court with jurisdiction to enter judgment on the offense charged;
2. Provides notice of the charges against which the defendant must defend; and
3. Enables the defendant to raise a double jeopardy bar to a subsequent prosecution for the same offense.

See generally State v. Greer, 238 N.C. 325 (1953).  

2.  A criminal pleading must contain the following:

1. The name or other identification of the defendant;
2. A separate count for each offense charged;
3. The county where the offense took place;
4. The date (or period of time) when the offense was committed;
5. A plain and concise factual statement supporting every element of the offense charged;
6. A citation of the statute or rule of law alleged to have been violated; and
7. In felony cases, a plain and concise factual statement of any aggravating factor upon which the state intends to rely.

G.S. 15A-924(a). While these are listed as required components of a criminal pleading, their absence does not necessarily render the pleading invalid. For example, the statute listing the requirements states that an error regarding a date in a pleading or the omission of a date is not grounds for dismissal of the charges or reversal of a conviction if time was not of the essence and the error or omission did not prejudice the defendant. G.S. 15A-924(a)(4). Similarly, an error in citing the statute or rule violated or its omission is not grounds for dismissal of the charges or for reversal of a conviction. G.S. 15A-924(a)(6).

Misdemeanor Pleadings in District Court

For misdemeanor cases in district court, the criminal process issued to the defendant (that is, the document which compels a person to appear and answer for a crime or misdemeanor in court) usually doubles as the criminal pleading (that is, the document which charges an offense and provides notice to the defendant. See G.S. 15A-922(a) (citation, summons, warrant for arrest or magistrate’s order all serve as state’s pleading in district court). Note that an order for arrest may also be issued in conjunction with a criminal pleading, but it is not included in G.S. 15A-922(a) and by itself does not charge a crime. See G.S. 15A-305.

1. Citation
   A citation is a written charge issued by a law enforcement officer. The principal difference between a citation and other forms of process is that a citation is issued by a law enforcement officer, as opposed to a judicial official. An officer may issue a citation for any misdemeanor or infraction for which the officer has probable cause. See G.S. 15A-302. An officer may arrest a person for a misdemeanor if grounds exist for a warrantless arrest under G.S. 15A-401(b), but has no authority to arrest for an infraction. A person arrested without a warrant must be taken before a magistrate. If the magistrate finds probable cause that a crime has been committed, the magistrate must issue a magistrate’s order, another type of criminal pleading discussed below. G.S. 15A-511(c).
   In addition to the requirements of G.S. 15A-924(a), the citation must:
   
   1. Identify the crime charged, including the date (where material, it must identify the property and other persons involved);
   2. Contain the name and address of the person cited, or other identification if that cannot be ascertained;
   3. Identify the officer issuing the citation; and
   4. Cite the person to whom issued to appear in a designated court at a designated time and date.

2.  Criminal Summons

A judicial official (justice, judge, clerk, or magistrate) may issue a criminal summons for any criminal offense or infraction for which probable cause exists. See G.S. 15A-303(f); G.S. 15A-304(f). A summons may charge a felony, but is typically used for misdemeanors only. If a judicial official issues a summons, the person is not taken into custody or placed under pretrial release conditions; he or she is simply directed to appear in court. A criminal summons must contain a statement of the crime or infraction charged and must inform the defendant that he or she may be held in contempt of court for failure to appear as directed. A court date must be set within one month of issuance of the summons unless the judicial official notes cause in the summons for setting a later court date.

3.  Warrant for Arrest
A judicial official may issue an arrest warrant for any criminal offense supported by probable cause when the person has not yet been taken into custody for the charge. See G.S. 15A-304. The warrant must include a statement of the crime charged. Id.

4.  Magistrate’s Order
A magistrate’s order is used when a person has been arrested without a warrant. A magistrate may issue an order for any criminal offense (felony or misdemeanor) for which the magistrate finds probable cause. See G.S. 15A-511(c) (describing procedures magistrates must follow). If an officer issues a citation for a misdemeanor and arrests the person, the magistrate may convert the citation into a magistrate’s order by signing the citation, or he or she may prepare a separate magistrate’s order.

5.  Statement of Charges
A misdemeanor statement of charges is a criminal pleading prepared by the prosecutor, charging a misdemeanor. Unlike the other documents described above, a statement of charges is only a type of pleading – it is not also a form of process, and therefore it should not be used to initiate a prosecution and compel the defendant to appear. See G.S. 15A-922(b)(1). A statement of charges may be used in the following circumstances:

1. When a defendant objects to the sufficiency of a criminal pleading (G.S. 15A-922(e));
2. When a defendant objects to trial on a citation (G.S. 15A-922(c)); or
3. When a prosecutor rewrites or amends an existing charge, or adds additional charges in district court (G.S. 15A-922(d).

Felonies and Misdemeanors Initiated in Superior Court

The superior court has jurisdiction over all felonies, and over misdemeanors joined with felonies. The superior court also has original jurisdiction over misdemeanors initiated by presentment.  See G.S. 7A-271. Jurisdiction over an offense gives the court jurisdiction over all lesser-included offenses of the crime charged. Therefore, when the defendant is indicted for a felony, the superior court can accept a plea of guilty to a lesser-included offense that is a misdemeanor, or it can enter judgment on a jury verdict for a lesser-included misdemeanor.

In superior court, a prosecution must be initiated by indictment or information. See G.S. 15A-923(a). A bill of particulars, described below, may be used to supplement, but does not replace, an indictment or information. A presentment, described below, is not a formal charging document but may lead to the initiation of charges.

1. Indictment
   An indictment is a written accusation by a grand jury stating that it has found probable cause to believe that the defendant committed a specific crime. See G.S. 15A-641. A prosecution in superior court must be by indictment, although a noncapital defendant may waive the right to an indictment and be tried on an information. See G.S. 15A-642; -943. Indictments typically charge felonies. Misdemeanors may be charged in an indictment only if the charge is initiated by presentment or if the offense is joined with a charged felony. See G.S. 15A-923; G.S. 7A-271.

2. Information
   An information is an accusation drafted by the prosecutor and filed in superior court, charging one or more criminal offenses.  An information permits the prosecution of a felony (and related misdemeanors) without an indictment by grand jury, but only if both the defendant and the defendant’s attorney also sign a waiver of indictment consenting to have the case tried upon the information. See G.S. 15A-642; G.S. 7A-271; State v. Nixon, 263 N.C. App. 676 (2019) (trial court erred and lacked jurisdiction to enter judgment in case where defendant was charged by an information that did not include a waiver of indictment); State v. Futrelle, 266 N.C. App. 207 (2019) (waiver of indictment was defective and trial court lacked jurisdiction where waiver did not include signature of defendant's attorney); see also G.S. 15A-922(g) (prosecution of misdemeanor in superior court, pursuant to G.S. 7A-271, "must be upon information or indictment").
3. Presentment
   A presentment is a written accusation by the grand jury, filed in superior court, charging a defendant with one or more crimes. A presentment is initiated by the grand jury. A presentment does not commence a criminal proceeding, and is not a pleading itself. Instead, it compels the district attorney to investigate the allegations in a presentment, and then submit a bill of indictment back to the grand jury, if appropriate. Presentment is the only way that a misdemeanor prosecution may be commenced in superior court if the misdemeanor is not a lesser-included offense or otherwise related to a felony. See G.S. 7A-271(a)(2); 15A-641(c); 15A-644; 15A-922(g); 15A-923(a). The prosecutor may not submit both a presentment and a corresponding proposed indictment to the grand jury at the same time, because the indictment is supposed to be in response to, and after further investigation prompted by, the grand jury's presentment. See G.S. 15A-641; State v. Baker, 263 N.C. App. 221 (2018).
   
   Practice Pointer

   When is presentment used?
   Presentments are somewhat rare in practice. While it is possible for the grand jury to act entirely on its own in issuing a presentment, the process more often begins with the prosecutor writing a “draft” or “proposed” presentment, which is submitted to the grand jury along with the testimony of a witness. So in effect, the prosecutor is asking the grand jury (through a draft presentment) to tell the prosecutor (through an issued presentment) to come back and ask the grand jury (though a proposed indictment) to institute a charge (through an issued indictment).
   Why would the state seek a presentment, rather than submitting a normal indictment to the grand jury? Usually, this occurs because the state wishes to initiate a misdemeanor prosecution in superior court, rather than district court: “the State might use the presentment process when it expects a district court trial to be lengthy, involve several witnesses, etc., and if the defendant is convicted, an appeal for a trial de novo in superior court is highly likely. So one trial instead of two may ultimately save time and effort. Other reasons include cases that involve public figures or officials or cases that have received significant publicity.” Bob Farb, "Indicting for a Misdemeanor in Superior Court After a Grand Jury Presentment," N.C. Criminal Law Blog, Oct. 16, 2013.

4. Bill of Particulars
   A defendant may file a motion before arraignment requesting that the prosecutor prepare a bill of particulars which provides specified factual information related to the charge that is not recited in the pleadings. See G.S. 15A-925; 15A-952. The defendant must allege that he cannot adequately prepare or conduct his defense without the information. See G.S. 15A-925(b); State v. Moore, 335 N.C. 567 (1994). If the court determines that any or all of the items are necessary to enable the defendant to prepare or conduct his defense, the court must order the state to file with the court and serve upon the defendant or his attorney a bill of particulars. See G.S. 15A-925(c), (d). A bill of particulars is not a pleading; instead, it supplements an indictment or information by providing the defendant with additional information. Note that G.S. 15A-925(c) provides that a bill of particulars cannot require the state to recite matters of evidence. State v. Alston, 307 N.C. 321 (1983).

Finally, G.S. 15A 925(e) provides that:

1. A bill of particulars may not cure a defect in a criminal pleading, see State v. Parker, 119 N.C. App. 328 (1995);
2. The state’s evidence, as to those matters within the scope of the motion for a bill of particulars, is limited to the items set out in the bill of particulars, see State v. Loudner, 77 N.C. App. 453 (1985), but a defendant must show that the variance between the evidence and the bill of particulars was prejudicial to conducting a defense, State v. Summerford, 65 N.C. App. 519 (1983);
   and
3. The court may permit an amendment to a bill of particulars at any time before trial. See also State v. Garcia, 358 N.C. 382 (2004) (defendant is not entitled to a bill of particulars to require the state to specify the felonies on which it would rely in prosecuting first-degree murder); State v. Taylor, 304 N.C. 249 (1981) (defendant is not entitled to a bill of particulars setting out the aggravating circumstances the state plans to present at a capital sentencing hearing). For an example of how to file a bill of particulars in a case when a child sexual assault victim is unsure of the date of the offense, see State v. Effler, 309 N.C. 742 (1983).