- A defective criminal pleading can often be corrected by timely amending or replacing the charging instrument.
- If the defect cannot be cured, or if it was not cured in time, the prosecutor may be able to re-charge the same criminal conduct and try it in a new proceeding.
For templates with recommended language to use when charging specific criminal offenses, please see Jeffrey B. Welty, Arrest Warrant and Indictment Forms (6th ed. 2010) (paper copy only) and the available online updates from 2017, 2016, 2014, 2013, and 2012.
A criminal charge contained in a pleading must be sufficiently definite to (i) identify the offense charged against the defendant; (ii) enable the defendant to prepare his or her defense; (iii) bar a subsequent prosecution for the same offense; and (iv) enable the court to impose a judgment. State v. Sparrow, 276 N.C. 499 (1970). If the pleading fails to satisfy one of these requirements, or is otherwise defective as described in the preceding sections, the prosecutor should attempt to correct the pleading as described below before proceeding to arraignment or trial.
Alternatively, the state may choose to dismiss the case and proceed on a new criminal pleading. The defendant may also move to dismiss the defective pleading (see G.S. 15A-302(e); 15A-922(e); 15A-924(e); 15A-952(b)(6); 15A-954; -955; -956), requiring either a correction, if possible, or a new charge, if necessary.
State’s Motion to Amend the Pleading
A statement of charges, criminal summons, arrest warrant, citation or magistrate’s order may be amended at any time before or after final judgment as long as the amendment does not change the “nature of the offense charged.” G.S. 15A-922(f); see also G.S. 15-24.1 (may amend ownership of property in a warrant); State v. Clements, 51 N.C. App. 113 (1981) (at the close of its evidence in superior court, state was permitted to amend misdemeanor death by vehicle charge by alleging failure to reduce speed to avoid an accident as a factor, instead of following too closely – court ruled that the amendment did not change nature of the offense charged). A criminal information may also be amended, but only with the consent of the defendant. G.S. 15A-923(d).
G.S. 15A-923(e) states that a bill of indictment may not be amended. But in practice, despite the statutory prohibition against “amendments,” courts have frequently permitted certain “changes” to an indictment, as long as the changes did not “substantially alter” the charge, particularly when there was no prejudice or surprise to the defense. See State v. Price, 310 N.C. 596 (1984). The meaning of “substantially alter” is debatable, but appellate cases interpreting the issue over the years have established several categories of changes or corrections that prosecutors are usually allowed to make:
- Correct the Date of Offense
The state has generally been permitted to amend the indictment to correct the alleged date of the offense when it does not prejudice the defendant. See, e.g., State v. Coltrane, 188 N.C. App. 498 (2008) (correcting date of offense from December 9, 2004, to April 25, 2005); State v. Riffe, 191 N.C. App. 86 (2008) (state allowed to amend dates in indictments during trial; court ruled that trial judge did not err; court noted that time was not an element of the offenses, and defendant did not present alibi defense); State v. Whitman, 179 N.C. App. 657 (2006) (no error in allowing the state to amend the dates specified in the indictments charging statutory rape and sexual offense from “January 1998 through June 1998” to “July 1998 through December 1998”); State v. Wallace, 179 N.C. App. 710 (2006) (no error in amending date of statutory sexual offense indictment from “November 2001” to “June through August 2001”; defendant did not present an alibi defense that was adversely affected by the change in dates); State v. Lewis 162 N.C. App. 277 (2004) (state properly was allowed to correct second conviction alleged in habitual felon indictment, which had mistakenly noted date and county of defendant’s probation revocation instead of date and county of defendant’s prior conviction of felonious breaking and entering); State v. McGriff, 151 N.C. App. 631 (2002) (amending dates of sex offenses with young person); State v. Locklear, 117 N.C. App. 255 (1994) (amending an habitual felon indictment to change the date of the commission of a felony alleged in the indictment); State v. Kamtsiklis, 94 N.C. App. 250 (1989) (amending dates of beginning and ending of conspiracy offense); State v. Price, 310 N.C. 596 (1984) (amending date of murder from date victim died to date victim was shot).
- Correct a Statutory Reference
The state has generally been permitted to amend the indictment to correct an inaccurate statutory reference. See, e.g., State v. White, 202 N.C. App. 524 (2010) (trial court did not err by allowing state to amend habitual impairing driving indictment that mistakenly alleged a seven-year look-back period instead of the current ten-year look-back, when all of the prior convictions alleged in indictment fell within ten-year period, and language regarding the seven-year look-back was surplusage); State v. Hill, 362 N.C. 169 (2008) (no error in allowing state to amend short form indictment charging first degree statutory sexual offense by changing statutory reference for underlying conduct from “G.S. 14-27.7A” to “G.S. 14-27.4(a)(1)”).
- Correct the Victim’s Name
The state has generally been permitted to amend the indictment to correct the name of the victim, as long as the amended pleading still alleges the same person. See, e.g., State v. Hewson, 182 N.C. App. 196 (2007) (no error in allowing state to amend indictment to change the victim’s name from “Gail Hewson Tice” to “Gail Tice Hewson”); State v. Bailey, 97 N.C. App. 472 (1990) (correcting name of the victim where first and last name were reversed); State v. Marshall, 92 N.C. App. 398 (1988) (amending name of victim in pleading that inadvertently left out last name). But see State v. Shuler, __ N.C. App. __ (Dec. 18, 2018) (sex offense indictment which only identified victim as "Victim #1" was fatally defective).
- Changing Manner in Which Offense was Committed
The state has generally been permitted to amend the indictment to revise minor factual details, or correct the manner in which the alleged offense was committed. See, e.g., State v. McCallum, 187 N.C. App. 628 (2007) (court ruled that state was properly permitted to amend armed robbery indictments to delete the amount of money alleged to have been taken; amendments left the allegations as the defendant took an unspecified amount of “U.S. Currency”); State v. Van Trusell, 170 N.C. App. 33 (2005) (no error in allowing state to amend indictment which charged attempted armed robbery to charge armed robbery); State v. Wiggins, 161 N.C. App. 583 (2003) (amending age difference between defendant and victim in prosecution for statutory rape under G.S. 14-27.25); State v. Brady, 147 N.C. App. 755 (2001) (amending indictment charging obtaining controlled substance by forgery by changing name of controlled substance); State v. Parker, 146 N.C. App. 715 (2001) (amending description of property in false pretenses indictment); State v. Brinson, 337 N.C. 764 (1994) (amendment to felonious assault indictment was proper because it did not substantially alter the nature of the offense charged; original indictment sufficiently charged that cell bars and floor of jail were deadly weapons, in addition to fists); State v. Joyce, 104 N.C. App. 558 (1991) (amending armed robbery indictment to substitute “knife” for “firearm”); State v. Clements, 51 N.C. App. 113 (1981) (defendant was tried in district court for misdemeanor death by vehicle based on following too closely as the underlying violation; in superior court, the state was permitted to amend charge at the close of its evidence by alleging failure to reduce speed to avoid an accident instead of following too closely – court ruled that the amendment did not change nature of the offense charged); State v. Carrington, 35 N.C. App. 53 (1978) (striking language concerning co-accessory to charge).
- Changing Location or Address
The state has generally been permitted to amend the indictment to correct the location where the offense is alleged to have occurred. See, e.g., State v. Grady, 136 N.C. App. 394 (2000) (amending address of dwelling in charge of maintaining dwelling for use of controlled substance); State v. Snyder, 343 N.C. 61 (1996) (amending habitual impaired driving indictment to include “public vehicular area” in addition to street or highway); State v. Hyder, 100 N.C. App. 270 (1990) (changing name of county in indictment).
- Transfer Allegations of Prior Convictions to a Separate Count
The state has generally been permitted to amend an indictment in which prior convictions must be alleged separately by transferring those allegations to a different count. See State v. Stephens, 188 N.C. App. 286 (2008) (trial judge did not err in granting state’s motion to amend felony stalking indictment by transferring allegation of prior stalking conviction into a separate count in indictment); State v. Hairston, 227 N.C. App. 226 (2013) (unpublished) (allowing state’s motion to amend an indictment for violation of a DVPO to properly allege a felony by splitting the existing indictment into two separate counts); cf. State v. Sullivan, 111 N.C. App. 441 (1993) (indictment improperly listed defendant’s prior convictions in same count that charged defendant with breaking into coin operated vending machine – court granted defendant’s motion to dismiss, reducing the charge back down to a misdemeanor, so defendant could not be sentenced as an habitual felon).
When a Motion to Amend is Not Allowed
If the proposed amendment constitutes a “substantial change" to the indictment (e.g., curing a fatally defective indictment, or adding a new element of the offense), the state will need to seek a new indictment to correct the defect. If the state attempts to cure the defect through a motion to amend, the motion will likely be denied or reversed on appeal, as demonstrated below.
- Changing Property Owner in Larceny/Embezzlement Pleading
If a larceny or embezzlement indictment is defective or alleges the wrong owner, the state's motion to amend constitutes a substantial alteration and will not be permitted. See, e.g., State v. Abbott, 217 N.C. App. 614 (2011) (trial court erred by allowing state to amend bill of indictment charging larceny by striking the word “Incorporated” from the victim’s name, since the business was actually a sole proprietorship of a single person this was a substantial alteration because it changed the alleged owner from a business entity to a natural person); State v. Hughes, 118 N.C. App. 573 (1995) (amendment to embezzlement indictment changing ownership from an individual to a corporation substantially altered the offense and therefore was improper).
- Adding New or Different Elements to Offense
If the proposed amendment adds new or different elements to the offense, it is a substantial alteration and will not be allowed. See, e.g., State v. Hill, __ N.C. App. __ (Oct. 16, 2018) (error to allow state to amend kidnapping indictment by adding the term "bodily" to alleged "assault inflicting serious injury" facilitated by the kidnapping, since that changed the facilitated offense from a misdemeanor to a felony); State v. Cobos, 211 N.C. App. 536 (2011) (trial court committed reversible error by allowing state to amend indictment for drug trafficking conspiracy by adding “28 grams or more but less than 200 grams of cocaine,” because that was an essential element of a higher level offense; court also held that a defendant cannot consent to an amendment that cures a fatal defect because the issue is jurisdictional and a party cannot consent to subject matter jurisdiction); State v. Silas, 360 N.C. 377 (2006) (state was improperly permitted to amend felonious breaking and entering indictment to allege a different felony intended to be committed from “murder” to two felonious assaults because the amendment was substantial alteration of the indictment); State v. Moore, 162 N.C. App. 268 (2004) (indictment charging possession of drug paraphernalia alleged that the paraphernalia was “a can designed as a smoking device”; court ruled that trial judge erred in allowing state to amend indictment to change description of paraphernalia to a “brown paper container” because amendment constituted a substantial alteration of offense); State v. Moses, 154 N.C. App. 332 (2002) (error to allow state to amend pleading by adding allegation of a second aggravating factor to a charge of fleeing to elude – addition of a second aggravating factor raised it from a misdemeanor to a felony, which changed the nature of offense).
- “Substantial” Change to Name or Date
If the proposed amendment to a name or date would change the nature of the underlying offense, it is a substantial alteration and will not be allowed. See, e.g., State v. Winslow, 360 N.C. 161 (2005) (state was improperly permitted to amend habitual DWI indictment to change date of oldest DWI conviction, which elevated offense from misdemeanor to felony); State v. Abraham, 338 N.C. 315 (1994) (error to allow state to amend felonious assault indictment to change name of victim from “Carlose Antoine Latter” to “Joice Hardin”).
New Statement of Charges for a Misdemeanor
Prosecutor's Own Determination
A prosecutor may file a statement of charges upon the prosecutor’s own determination at any time before arraignment in district court. See State v. Capps, __ N.C. App. __, 828 S.E.2d 733 (2019). (misdemeanor statement of charges filed on prosecutor's own motion after trial in district court and appeal to superior court was invalid and superior court had no jurisdiction). The statement of charges may charge the same offenses as the original pleading or additional or different misdemeanor offenses. G.S. 15A-922(d). Because a statement of charges totally replaces the prior pleading, the prosecutor must include any other charges that were in the original pleading in the new statement of charges in order to retain those charges. See G.S. 15A-922(a).
Objection and Insufficiency
If a defendant objects to the sufficiency of a criminal summons, warrant for arrest, or magistrate’s order as a pleading at the time of or after arraignment in district court, or upon trial de novo in superior court, and the judge rules that the pleading is insufficient, the prosecutor may file a statement of charges, but only if it does not change the nature of the offense. G.S. 15A-922(e). See State v. Caudill, 68 N.C. App. 268 (1984); State v. Clements, 51 N.C. App. 113 (1981); State v. Killian, 61 N.C. App. 155 (1983) (prosecutor may not a file statement of charges on his or her own determination in superior court for a misdemeanor appealed for trial de novo when the defendant did not object to the arrest warrant). Note that a statement of charges may only be used to charge misdemeanors.
In either situation, the defendant is entitled to at least three working days (for preparing his or her defense) after (1) a statement of charges is filed, or (2) the time the defendant is notified about the statement of charges, whichever is later. However, the defendant is not entitled to additional time if the judge finds that the statement of charges does not materially change the pleadings, and additional time is unnecessary. G.S. 15A-922(b)(2); State v. Chase, 117 N.C. App. 686 (1995) (defendant in this case was not entitled to continuance after state filed statement of charges).
What about warrants?
A “fatally defective” warrant cannot be amended, but it can be replaced by a statement of charges. See State v. Madry, 140 N.C. App. 600 (2000) (“instead of issuing an amendment, the State should have filed a statement of charges to rectify the situation” under G.S. 15A-922(b)). Alternatively, the charge may be dismissed and a new prosecution instituted within one year. See G.S. 15-1 (“if any pleading shall be defective, so that no judgment can be given thereon, another prosecution may be instituted for the same offense, within one year after the first shall have been abandoned by the State”).
Recharge or Retrial of Dismissed Charges
There is no double jeopardy bar to a second trial when a charge is dismissed because an indictment or other criminal pleading is fatally defective. See State v. Blakney, 156 N.C. App. 671 (2003); State v. Whitley, 264 N.C. 742 (1965); State v. Jernigan, 255 N.C. 732 (1961); State v. Coleman, 253 N.C. 799 (1961); State v. Barnes, 253 N.C. 711 (1961). See also United States v. Akpi, 26 F.3d 24 (4th Cir. 1994); United States v. Thurston, 362 F.3d 1319 (11th Cir. 2004); United States v. Davis, 873 F.2d 900 (6th Cir. 1989).
There is similarly no double jeopardy bar to a second trial when a charge is dismissed because there was a fatal variance between the proof and the allegations in the charge. See State v. Mason, 174 N.C. App. 206 (2005); State v. Miller, 271 N.C. 646 (1967); State v. Stinson, 263 N.C. 283 (1965); State v. Johnson, 9 N.C. App. 253 (1970). However, double jeopardy will bar a retrial if the judge incorrectly dismissed a charge for a fatal variance. State v. Teeter, 165 N.C. App. 680 (2004).
Juvenile Court Petitions
If the amendment would change the nature of the offense charged, then a juvenile petition may not be “amended,” even if the juvenile consents. See In re Davis, 114 N.C. App. 253 (1994) (judge erred in allowing state to amend petition to charge violation of G.S. 14-66, when it originally charged a violation of G.S. 14-59, because the amendment changed the nature of the offense charged and was not a lesser-included offense). However, G.S. 7B-2400 does permit the amendment of a juvenile petition as long as it “does not change the nature of the offense alleged.” Additionally, a juvenile is permitted to plead to any lesser-included offense of the originally charged offense contained in the petition. See G.S. 7B-1802; State v. Daniels, 51 N.C. App. 294 (1981) ("It is established in the criminal law that the greater crime includes the lesser"), quoting State v. Cooper, 256 N.C. 372 (1962).
If neither of those remedies is sufficient, the prosecutor may sign a new petition as the complainant, as long as the intake counselor follows the normal statutory procedures before the signing of a petition alleging delinquency and the prosecutor does not encroach on the important role of the intake counselor. See In re Stowe, 118 N.C. App. 662 (1995). The prosecutor should then dismiss the original petition once a new petition is obtained. For more information, see the related Juvenile entry on Defects and Amendments.