Key Concepts

  • Pretrial release conditions can be modified after initial appearance. The judicial official authorized to make those modifications changes as the case progresses.
  • Pretrial release may be revoked for good cause.
  • The defendant’s failure to appear may be sanctioned by new criminal charges, contempt, arrest, or forfeiture of defendant’s bond.

Modification of Pretrial Release Order

If a prosecutor believes that conditions of release imposed are not adequate to ensure the defendant's appearance, or that the surety on defendant's bond is not solvent, he or she may apply to the appropriate judge for an order modifying the release conditions. G.S. 15A-539(a). The defendant may also move to modify his release conditions, or ask to substitute the surety on a bond. See G.S. 15A-538.

Additionally, on motion of the state or on a judge’s own motion, the court may conduct a hearing into the source of money or property to be posted for a defendant who is about to be released on a secured appearance bond. G.S. 15A-539(b). The judge may refuse to accept the money or property offered as security for the appearance bond if the state proves by a preponderance of the evidence that, because of its source, the money or property will not reasonably assure the appearance of the person.

Before the defendant’s first appearance, release conditions may be modified by a magistrate or clerk. G.S. 15A-534(e). After a first appearance, conditions may only be modified by the district court judge (except in cases where the conditions have already been reviewed by a superior court judge pursuant to G.S. 15A-539) up until the time that a case tried in district court is noted for appeal to superior court, or when the case is bound over to superior court for trial after a hearing or waiver on probable cause. G.S. 15A-534(e)(1), (2).

Once a case is in superior court, the superior court judge may review and modify any prior pretrial release order up until the time that defendant’s guilt is established – after that time, the superior court judge must set release conditions (if any) pursuant to G.S. 15A-536 (Release after conviction in the superior court).

Revocation of Pretrial Release Order

For “good cause shown,” any judge may revoke an order of pretrial release at any time. G.S. 15A-534(f). See State v. Perry, 316 N.C. 87 (1986) (trial judge has discretionary authority to revoke bail and order defendant confined during trial). Upon motion of the defendant, the judge must then set new conditions of release as appropriate and in accordance with the statutes.

Responses to Defendant’s Failure to Appear

  1. Criminal Charge for Failure to Appear; G.S. 15A-543
    It is a Class I felony offense if the defendant fails to appear as required on a felony charge, or after being released pursuant to G.S. 15A-536 (Release after conviction in superior court); otherwise, failure to appear is a Class 2 misdemeanor. See State v. Goble, 205 N.C. 310 (2010) (defendant violated release conditions by failing to appear on second day of trial on felony charges – not error to only instruct jury on felony failure to appear, even though original charges only resulted in misdemeanor conviction); State v. Dammons, 159 N.C. App. 284 (2003) (defendant was released on bond but failed to appear as ordered for trial – guilty of willful failure to appear).
  2. Criminal Contempt; G.S. 15A-546; G.S. 5A-11 through 5A-17
    By statute (see G.S. 15A-546), the various remedies provided in Article 26 (Bail) are not intended to limit the court’s ability to use its criminal contempt power to sanction the defendant for failure to appear as ordered. For example, see G.S. 5A-11(a)(3) (willful disobedience of a court order) and G.S. 5A-11(a)(7) (willful or grossly negligent failure to comply with court schedule). For more information, see the related entry on Contempt
  3. Surety May Arrest and Surrender Defendant; G.S. 15A-540
    If the defendant breaches the conditions of release, the surety may arrest him and surrender him to the sheriff. (If the defendant is already in custody, the surety may appear in person and notify the sheriff he wishes to surrender the defendant.) G.S. 15A-540(b). The surety is also permitted to surrender the defendant before there has been a breach - for example, if the surety has reason to believe the defendant may flee. See G.S. 15A-540(a). Once surrendered, the defendant will be taken back before a judicial official to determine whether the defendant is again entitled to release, and if so, on what conditions. G.S. 15A-540(c).
  4. Forfeiture of Bond; G.S. 15A-544.1, et seq
    If the defendant fails to appear as ordered, the surety will forfeit the property specified in the bond that was pledged to ensure defendant’s appearance.

For more information, see also the related entries on Failure to Appear: FTA, OFA, and V/L and Failure to Appear: Reinstatement of a V/L Case.

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 1.