117.2Waiver of Arraignment
- Personal appearance at arraignment is normally required, unless waived.
- Arraignment also triggers deadlines for filing of certain defense motions.
Under G.S. 15A-941(d), a defendant will only be arraigned if he files a written request with the clerk not later than 21 days after indictment, except for trial de novo cases in counties subject to mandatory arraignment. See State v. Vereen, 177 N.C. App. 233 (2006); see also previous entry on Arraignment – Procedure. Therefore, it will be a rare case in which the defendant requests an arraignment but then also wishes to waive the arraignment. Because, however, a prosecutor may wish to schedule arraignments even without a defendant’s request, G.S. 15A-945 (waiver of arraignment) is discussed below.
Defendant’s Personal Appearance at Arraignment
Generally, a defendant must appear before a judge in open court and personally enter a plea to the charges. G.S. 15A-941 and 15A-1011(a). The defendant may waive personal appearance at arraignment only if one of the following exceptions is met:
- The defendant is a corporation, in which case the plea may be entered by counsel or a corporate officer;
- There is a waiver of arraignment and a filing of a written plea of not guilty under G.S. 15A-945;
- In misdemeanor cases there is a written waiver of appearance submitted with the approval of the presiding judge;
- Written pleas in traffic cases, hunting and fishing offenses under Chapter 113, and boating offenses under Chapter 75A are authorized under G.S. 7A-146(8);
- The defendant executes a waiver and plea of not guilty as provided in G.S. 15A-1011(d);
- The defendant, before a magistrate or clerk of court, enters a written appearance, waiver of trial and plea of guilty and at the same time makes restitution in a case wherein the sole allegation is a violation of G.S. 14-107, the check is in an amount provided in G.S. 7A-273(8), and the warrant does not charge a fourth or subsequent violation of this statute.
G.S. 15A-1011(a). If a defendant is represented by an attorney, the defendant or the attorney may waive arraignment orally, in court on the scheduled date of arraignment or earlier by filing a written plea of not guilty, which the defendant and the attorney must sign. See G.S. 15A-945; State v. Benfield, 55 N.C. App. 380 (1982). If a defendant is not represented by an attorney and wants to waive arraignment, the defendant must appear in court on the scheduled date of arraignment to enter a waiver of arraignment, unless one of the waiver-of-appearance exceptions in G.S. 15A-1011(a) is satisfied.
Timely Filing of Motions at Arraignment, or 21 Days After Indictment
Motions set out in G.S. 15A-952(b) (e.g., motions to continue, change venue, severance or joinder) must be made at or before arraignment if a written request is filed for arraignment, and the arraignment is held before the session of court for which the trial is calendared. If the arraignment is to be held at the session for which the trial is calendared, then the motions must be filed on or before 5:00 p.m. on the Wednesday before the session when the trial of the case begins. If a written request for arraignment is not filed, then any motion listed in G.S. 15A-952(b) must be filed not later than 21 days from the date of the return of the indictment. G.S. 15A-952(b), -952(c).
The failure to make the motions set out in G.S. 15A-952(b) constitutes a waiver of the motions, except as provided in G.S. 15A-952(d) (motions concerning the court’s jurisdiction or a pleading’s failure to charge an offense may be made at any time). In practice, however, the court may grant relief from any waiver except the failure to move to dismiss for improper venue. G.S. 15A-952(e).