121.2Failure to Appear
Key Concepts
- For minor offenses in which a personal appearance may be waived, the defendant can dispose of the case by submitting a waiver and payment of all penalties and other costs directly to the clerk, even if the case is still in V/L status.
- For all other offenses, the state must first “reinstate” the V/L charges and then resume the prosecution in order to reach a final disposition.
- The state must reinstate the case and proceed with the prosecution within a "reasonable time" after the defendant is apprehended or appears in court.
The preceding entry, OFA, FTA, and V/L, summarized the procedure whereby the state may take a voluntary dismissal with leave to reinstate a case (a “V/L dismissal”) if the defendant fails to appear as ordered for court.
When the defendant voluntarily reappears in court, or when the defendant is apprehended or such apprehension seems imminent, the state may reinstate the V/L charges and resume the prosecution.
When and How is a Case Reinstated?
Waiver Offenses
For cases in which the defendant was charged with an infraction or other minor offense for which an appearance and entry of plea can be waived (e.g., a routine speeding ticket), the defendant may dispose of the case while it is still in V/L status by submitting a waiver and full payment of all fines, costs and fees directly to the clerk. The clerk will accept the waiver and payment, enter the disposition in the record, and recall any “outstanding process” in the case (such as an order for the defendant’s arrest). See G.S. 15A-932(d1); G.S. 7A-273(2), (2a) (waivers for misdemeanors and infractions); see also G.S. 15A-1011 ("Plea in district and superior courts; waiver of appearance").
All Other Offenses
In all other cases (and in waiver offenses where the defendant does not dispose of the case directly through the clerk), the prosecutor may “reinstitute the proceedings” (that is, return the case to an active court docket) upon apprehension of the defendant, or when the prosecutor believes, in his or her discretion, that apprehension of the defendant is imminent. G.S. 15A-932(d). The prosecutor reinstitutes the proceedings by making a written filing with the clerk. Id.; see also AOC-CR-307B (third section, “Reinstatement”).
However, because the V/L statute is primarily a “calendaring device,” the state’s failure to strictly comply with the requirement of filing a written notice of reinstatement does not deprive the court of jurisdiction. See State v. Patterson, 103 N.C. App. 195 (1991) (V/L statute “is not jurisdictional in nature, nor does failure to strictly comply with its requirements result in the failure of the pleading to charge an offense”); State v. Reekes, 59 N.C. App. 672 (1982) (affirming conviction even though “no action was taken by the State to reinstate the matter pursuant to the August 18 Voluntary Dismissal With Leave” other than placing the case back on a trial calendar); see also State v. Murray, 160 N.C. App. 709 (2003) (unpublished) (prosecutor filed reinstatement form but failed to check the box marked “Reinstatement” – court was not deprived of jurisdiction).
Furthermore, if the defendant fails to object to the absence of a written reinstatement, the issue is waived on appeal. See State v. Viera, 189 N.C. App. 514 (2008) (defendant waived issue by failing to object to lack of written reinstatement before trial); State v. Tedder, 169 N.C. App. 446 (2005) (rejecting defendant’s challenge to reinstatement because “Defendant made no objection to entry of judgment at the sentencing hearing and has thus waived her right to bring this matter forward on appeal”); see also State v. Becton, 219 N.C. App. 651 (2012) (unpublished) (“Even assuming, arguendo, that proper written notice of reinstatement was not given to Defendant…we find that Defendant waived any such error by failing to object[.]”).
Deadline for Reinstatement
There is no “expiration date” for a case in V/L status – as long as the initial charging instrument was timely filed, the case may be reinstated and resumed at any time in the future when the defendant is apprehended or reappears in court. See State v. Lamb, 321 N.C. 633 (1988) (“All outstanding process retains its validity and the prosecutor may reinstitute the proceedings by filing written notice with the clerk without the necessity of a new indictment.”); see also State v. Tedder, 169 N.C. App. 446 (2005) (affirming DWI conviction where offense occurred on April 20, 2001, state filed a V/L dismissal based on defendant’s non-appearance on April 25, 2002, and state filed a reinstatement on May 5, 2003 – more than two years after the original date of offense).
G.S. 15A-932 does not set a specific deadline for reinstating a V/L case and placing it on an active calendar after the defendant has been apprehended or voluntarily reappears, but appellate cases interpreting this statute have held that the prosecution must be resumed within a “reasonable time” after the defendant’s appearance. See State v. Reekes, 59 N.C. App. 672 (1982) (“the State is required to reinstitute proceedings within some ‘reasonable’ time, especially in a case such as the present one where the defendant is in custody, awaiting trial” - court held that reinstatement on December 14th after defendant was arrested on August 29th was reasonable); accord, State v. Morehead, 62 N.C. App. 226 (1983) (citing Reekes, finding it was not an unreasonable delay where defendant was arrested on October 15th and the case was reinstated on January 4th of the following year).
What about speedy trial?
North Carolina no longer has a “speedy trial” statute, but the defendant still has 6th Amendment and due process rights to a prompt resolution of the case. (For more information see the related entry on Speedy Trial – Constitutional and Statutory Protections.) If the state is reinstating a very old case and the defendant raises the issue of his right to a speedy trial, the prosecutor should argue that the lengthy period of time when the case was left pending in V/L status is due to the defendant’s own failure to appear, so it should not be held against the state. See State v. Reekes, 59 N.C. App. 672 (1982) (decided under the old speedy trial statute, G.S. 15A-701, but noting that “the speedy trial clock did not resume running against the State until the proceedings were reinstituted against the defendant”); State v. Morehead, 62 N.C. App. 226 (1983) (similar ruling, citing Reekes).
Is Reinstatement Discretionary or Mandatory?
NOTE: The following section has not yet been updated to reflect the North Carolina Supreme Court's decision in State v. Diaz-Tomas, 2022-NCSC-115 (November 4, 2022), holding that neither a criminal defendant nor the court can compel the prosecutor to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932. For a discussion of that case and its impact, see Shea Denning, "State v. Diaz-Tomas Recognizes Broad Prosecutorial Discretion Following Dismissals with Leave," N.C. Criminal Law Blog, Nov. 10, 2022.
G.S. 15A-932(d) states that a prosecutor “may” reinstitute the proceedings in a V/L case upon apprehension of the defendant, or when such apprehension appears to be imminent. Based on that discretionary phrasing, may the prosecutor choose not to reinstitute a V/L case? If several years have passed since the defendant failed to appear and the state’s ability to prosecute the case has been severely compromised by the delay (e.g., the officer has retired, witnesses have moved away, or key evidence is no longer available), the prosecutor might conclude that it is not in the state’s interest to reinstate a case that may be dismissed at trial for insufficient evidence.
There is very limited case law on this issue, and the answer depends at least in part on the type of offense at issue, but the greater weight of authority generally indicates that the state may not leave a case in “permanent” V/L status after the defendant has been apprehended or voluntarily reappeared in court.
Motor Vehicle Offenses
Under G.S. 20-24.1(a), if a person charged with a motor vehicle offense fails to appear for court, his or her license must be revoked. The term “motor vehicle offense” includes any crime or infraction created by Chapter 20 (e.g., DWI, reckless driving, speeding, or driving while license revoked). G.S. 20-24.1(e). The defendant’s license remains revoked until he or she “disposes” of the case in which he or she failed to appear. G.S. 20-24.1(b).
To facilitate disposition of the case that led to the defendant’s license revocation, “a defendant must be afforded an opportunity for a trial or a hearing within a reasonable time of the defendant's appearance.” G.S. 20-24.1(b1) (emphasis added). Additionally, “upon motion of a defendant, the court must order that a hearing or a trial be heard within a reasonable time.” Id. (emphasis added). Therefore, even if the state’s ability to prosecute the motor vehicle offense has been compromised by the defendant’s delay, the state appears to be obligated under this statute to reinstate the V/L case and proceed to some type of disposition. See generally White v. Williams, 111 N.C. App. 879 (1993) (dismissing, on the grounds of official immunity, civil suit against prosecutor who refused to reinstate and resolve the defendant’s V/L case in which an erroneous notice of failure to appear led to revocation of his license – but noting that “what happened to Mr. White was outrageous and shameful” and “someone could have, and someone should have, corrected the mistake”).
Other Criminal Offenses
In Klopfer v. North Carolina, 386 U.S. 213 (1967), the U.S. Supreme Court ruled that the state’s “nolle prosequi with leave” procedure was unconstitutional. Under the nolle prosequi system in use at the time, if the prosecutor did not “desire to proceed further with the prosecution,” he could remove the case from the trial calendar and the defendant was free to go, but the state could resume the prosecution at any time in the future. Id. The Supreme Court held that this unlimited ability to indefinitely postpone the prosecution of the case violated the defendant’s right to a speedy trial, and the defendant suffered harm as a result because “the pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes.” Id.
However, because the discretionary nolle prosequi procedure at issue in Klopfer was superseded by the statutory limitations and reinstatement requirements now codified in G.S. 15A-931 (voluntary dismissal) and G.S. 15A-932 (dismissal with leave), it is questionable whether Klopfer is still controlling law on this issue. See, e.g., State v. Lamb, 84 N.C. App. 569 (1987) (finding that “Defendant’s reliance on Klopfer is misplaced” in a case where indictment was properly dismissed pursuant to the statutes and the defendant was subsequently re-indicted).
But even if Klopfer does not apply to the current statutes, prosecutors must also be mindful of their ethical duties under the Rules of Professional Conduct. For example, Rule 3.1 prohibits a lawyer from bringing a proceeding “unless there is a basis in law and fact for doing so,” and Rule 3.8 prohibits a prosecutor from “prosecuting a charge that he knows is not supported by probable cause.” These rules suggest that if the prosecutor knows that the state is no longer capable of prosecuting a case in V/L status, the appropriate resolution would be to permanently dismiss the case pursuant to G.S. 15A-931, even if the defendant’s failure to appear is the reason why the state’s case has been compromised. See also 2009 Formal Ethics Opinion 15 (“a prosecutor who knows that she has no admissible evidence supporting a DWI charge to present at trial must dismiss the charge prior to calling the case for trial”).
“Decline to reinstate”
Some districts have adopted a local practice to address V/L cases in which the state still has some evidence of the defendant’s guilt (satisfying the Rules of Professional Conduct), but the state has also been prejudiced in some way by the delay (e.g., a key witness is no longer available). Rather than dismissing the case, the prosecutor will mark the court file “Decline To Reinstate” or “DTR.” This designation means that the state is agreeing to the following: (i) any bond or release conditions imposed on the defendant will be rescinded; (ii) any order for arrest for failure to appear will be recalled; and (iii) the defendant will not be subjected to any further prosecution for the V/L case.
The rationale for this procedure is that it does not “reward” the defendant with a dismissal for missing court, but it also avoids the issues raised in Klopfer because the defendant is not left under the permanent threat of pending prosecution at some unknown date in the future. North Carolina’s appellate courts have not yet weighed in on the propriety of this procedure.
