110.2Initial Appearance & First Appearance
- Prosecutors must follow statutory requirements to ensure defendants have their first appearance on felonies and related misdemeanors within 72 hours.
- Prosecutors should also ensure the court conducts all necessary steps, including appointing counsel or obtaining a waiver of counsel, and be prepared to argue for appropriate pretrial release conditions.
- Defective or insufficient charges should be corrected, when possible, or else replaced with new charges.
Offenses that Require First Appearance
A first appearance is required when the defendant is charged with a crime within the original jurisdiction of superior court, which includes all felony charges and all misdemeanors that are joinable with a felony charge as provided in G.S. 7A-271. G.S. 15A-601(a). For example, the court would hold a first appearance for a DWI charge that is joined with a charge of involuntary manslaughter, and likewise for a charge of misdemeanor possession of drug paraphernalia joined with a charge of felonious possession of cocaine. Effective December 1, 2021, first appearances are also required for defendants charged with misdemeanors who are held in custody under a magistrate's order, warrant, or citation. G.S. 15A-601(a).
Check Jailed Defendants Who Need a First Appearance
Prosecutors should regularly check the jail intake list and consult with the clerk’s office to determine who needs a first appearance. The prosecutor will want to ensure that any defendant charged with a felony has had a first appearance within 96 hours after being taken into custody. Follow the local procedures for requesting transportation of jail inmates, and make arrangements to have in-custody defendants who need a first appearance transported to the district courtroom at the appropriate time.
Pretrial Release Review
One of the main purposes of conducting a first appearance is to allow the district court judge to review and modify any pre-trial release conditions which were set at the initial appearance. The prosecutor should be prepared to argue for or against any such changes to defendant’s release status, depending on the facts of the case. See the related entry on Pretrial Release – Modifying or Revoking.
Conducting First Appearance When Judge Is Not Available
If district court is not in session in the county and a district court judge is not available within 72 hours of defendant’s arrest, a jailed defendant may have to be taken to another county within the judicial district so that a first appearance can be held within the 72-hour time limit. G.S. 15A-601(d), (e) (effective December 1, 2021; the previous time limit was 96 hours). If a judge is unavailable, the first appearance may be conducted by the clerk of superior court; if the clerk is unavailable, the first appearance may be conducted by a magistrate. G.S. 15A-601(e). Additionally, if “the courthouse is closed for transactions for a period longer than 72 hours,” the permissible time period is extended and the first appearance must be held within 96 hours after the defendant is taken into custody or at the first regular session of the district court in the county, whichever is first. G.S. 15A-601(c).
Conducting First Appearance When an Indictment Is the Initial Charge
In most cases, the defendant will initially be charged by some other process (i.e., an arrest warrant) and will have had a first appearance on that charge before a district court judge. The state will then seek an indictment at the next available grand jury. If a true bill is returned, the superior court will obtain jurisdiction over the case. However, in cases where the initial charging instrument is a grand jury indictment, the superior court already has jurisdiction, so the first appearance should be held before a superior court judge. This is also reflected G.S. 15A-601(a)’s requirement for a first appearance before a district court judge when the defendant is charged by any process included in G.S. 15A-301 through -305, which notably does not include indictments. Despite the fact that these statutes indicate that a district court judge cannot conduct a first appearance after the defendant has been indicted, in some districts the first appearance is always conducted in district court, regardless of whether the defendant has been indicted. Prosecutors should consult their local practices on this point.
Representation by Attorney
A defendant is recognized as being represented by counsel only after an attorney formally enters a criminal proceeding by making an appearance in accordance with the requirements set forth in G.S. 15A-141. Check with the clerk to determine whether a proper entry has been made. There is no requirement that a defendant be represented by counsel at the first appearance itself. G.S. 15A-601(a).
Be sure that a defendant’s written waiver of counsel (AOC-CR-227) has been filed with the clerk if the defendant wants to represent him- or herself, and that the waiver of counsel complies with G.S. 7A-457(a) and G.S. 15A-1242. Also ensure that a written waiver of court-appointed counsel has been filed with the clerk if the defendant indicates that he or she plans to hire an attorney. See the related entry on Right to Counsel - Waiver of Counsel.
After the judge has reviewed the defendant’s affidavit of indigency, the clerk should place it in the court file. Along with the affidavit of indigency, the clerk should place in the court file an appointment-of-counsel form if the judge finds the defendant indigent, or a denial-of-appointed-counsel form if the judge finds defendant not to be indigent. See the related entry on Right to Counsel – Determining Indigency.
If the Felony Charge Is Improper or Defective
The prosecutor should examine the charging instrument to be sure it contains all the necessary elements of offense, is in proper form, and constitutes a felony. See G.S. 15A-604(b).
- Determine that Venue is Proper
Examine the charge for the location of the offense and determine whether the venue is proper in the charging county. See G.S. 15-129 - 133 and G.S. 15A-131 - 136; see also the related entry on Venue.
- Motion to Amend a Felony Charge
A statement of charges may be used to correct a related misdemeanor offense, but not a felony offense. If a felony charge is improper or defective, the prosecutor should make a motion to amend it, if the defect is one that can be cured immediately without prejudicing the defendant. If the motion is granted, the prosecutor should make the amendment in writing by adding or striking through the appropriate language, and then date and initial the amendment. See also the related entry on Criminal Pleadings – Amending and Correcting.
- Continue the Case
If the judge refuses to allow the amendment, if the defect cannot be cured by amendment, or if the prosecutor simply requires more information regarding the nature of the alleged conduct by the defendant to determine the most appropriate way for it to be charged, he or she should move to continue the proceedings.
- Recharge the Felony
If the judge will not allow the state to amend the charge or continue the proceedings, and assuming that probable cause to charge the defendant still exists, the prosecutor should request that a law enforcement officer immediately secure a new arrest warrant that is proper in form. The state should serve the warrant on the defendant before he or she is released from jail on the defective charge. If that cannot be done quickly enough, an officer could also make a warrantless arrest and take the defendant back before a magistrate.
- Trial for Misdemeanor under Certain Circumstances
If a felony charge states the elements of a misdemeanor rather than felony, the prosecutor may calendar the case for trial in district court and proceed on it as a misdemeanor. If there is sufficient evidence to charge a felony, the state may amend the charge as needed or seek new felony charges, as described above.
- Dismiss all Charges
If the prosecutor determines that there is insufficient evidence to support the prosecution for any offense, he or she should dismiss the charge and have the defendant notified (and processed for release, if in custody).
Alternatives When Charging Papers Are Not Present
If the prosecutor is called upon to conduct a first appearance and has not received any paperwork on the defendant’s case, he or she should check with the clerk. Alternatively, if the defendant or his counsel has a copy of the charge that was provided to the defendant by the officer or magistrate, the prosecutor may make a copy of that document and proceed with it for purposes of the first appearance until the proper documents are located. If neither the defendant nor the clerk has a copy of the charge, the state should make a motion to continue to a specified date so the proper documents can be located. The prosecutor should not attempt to have the defendant “generally” advised of the charge against him (i.e., “felony assault”) without having the specific offense information (date, location, victim, etc.).
Fingerprints and DNA Sample
In all felony cases and in misdemeanor cases in which fingerprinting is required by local plan, the prosecutor should check to be sure that the defendant’s fingerprint card is attached to the charge as required by G.S. 15A-502 and 15A-1383. A DNA sample must also be taken from an arrestee charged with certain offenses. See G.S. 15A-266.3A.