505.2Defects and Amendments
- The petition is the only authorized form of pleading in juvenile court, and it is subject to same requirements (and subject to dismissal for the same defects) as an indictment in superior court.
- The petition may also be dismissed if there is a fatal variance between the alleged offense and the evidence presented at the adjudication hearing.
- Minor errors in the petition may be corrected through an amendment, while substantial defects can only be corrected by filing a new petition.
Common Pleading Defects
A properly filed petition is the only statutorily authorized pleading in a juvenile case, and the legal sufficiency of that petition is evaluated in the same way that an indictment or other pleading would be evaluated in criminal court. See G.S. 7B-1801; In re Griffin, 162 N.C. App. 487 (2004) (juvenile petition “serves essentially the same function as an indictment in a felony prosecution and is subject to the same requirement[s….]”). This means that petition must be valid on its face, and comply with the basic statutory requirements (it must contain the juvenile’s name, date of birth, address, name and address of parent or guardian, and give a plain and concise statement of facts to support each element, sufficient to inform the juvenile of the alleged delinquent act). See G.S. 7B-1802. It also means the petition can be challenged by the juvenile for defects. The most common defects are summarized below:
Complainant Signature and Verification
The petition must be signed by the complainant and verified under oath. See G.S. 7B-1803(a). If not, the court has not been properly vested with jurisdiction and the petition will be dismissed. See In re T.R.P., 360 N.C. 588 (2006); In re Green, 67 N.C. App. 501 (1984).
Court Counselor Signature and Approval
The petition must be signed by a court counselor, and marked with the words “approved for filing.” See G.S. 7B-1703(b). Standard juvenile petition forms such as AOC-J-310 all have a clearly marked place on the second page for the court counselor to date and sign the petition, and check a box indicating his or her approval. Failure to do so will make the petition jurisdictionally defective, and therefore subject to dismissal or reversal on appeal. See In re T.K., 253 N.C. App. 443 (2017).
If the petition fails to give sufficient notice of the allegations or provide a plain and concise statement asserting facts to support each element, it may be deemed fatally defective and dismissed. See In re B.D.W., 175 N.C. App. 760 (2006) (kidnapping petition fatally defective for failing to state element regarding improper purpose of the confinement); In re R.P.M., 172 N.C. App. 782 (2005) (fatally defective felony assault petition – petition alleged assault with “intent” to inflict serious injury, which is not a cognizable offense); In re Jones, 135 N.C. App. 400 (1999) (fatally defective sex offense petition failed to allege ages of victim and juvenile).
On the other hand, juvenile petitions “should not be subjected to hyper technical scrutiny with respect to form” and should not be deemed fatally defective for minor technical errors or omissions. See In re S.R.S., 180 N.C. App. 151 (2006) (communicating threats petition was not fatally defective for charging threats to person “and” property, where underlying allegation was only a threat to a person); In re J.F.M, 168 N.C. App. 143 (2005) (assault on officer and resist/delay/obstruct petition gave a very minimal description of duty being performed, but was sufficient to put juvenile on notice and confer jurisdiction). Similarly, the appellate court has approved of the use of “short form” petitions in juvenile court for homicides and certain sex crimes. See In re K.R.B., 134 N.C. App. 328 (1999) (short form murder petition); In re K.H., 196 N.C. App. 176 (2009) (short form first-degree sex offense petition).
Timing of Motion or Objection
If the alleged defect is a jurisdictional defect, like those described above, then the issue may be raised at any time, including for the first time on appeal. See In re S.R.S., 180 N.C. App. 151 (2006). If the defense alleges some other defect which is not jurisdictional (e.g., improper venue), failure to object before the state begins presenting its case may constitute a waiver. See G.S. 15A-952.
Even if the petition is valid on its face, there may be a fatal variance between the delinquent act alleged in the petition and the evidence presented at the adjudication hearing. If the evidence proves a different offense from that which is charged in the petition (e.g., sex offense by force rather than based on age) or if the evidence does not conform to the allegations in the petition (e.g., victim was actually John Doe, not Jane Smith as alleged), then the juvenile may move to have the petition dismissed at the close of the state’s evidence. See In re Griffin, 162 N.C. App. 487 (2004); State v. Call, 349 N.C. 382 (1998).
It is not considered a fatal variance where the state only succeeds in proving a lesser-included offense, such as proving common law robbery or felony larceny on a petition charging armed robbery. See In re J.H., 177 N.C. App. 776 (2006); In re B.D.W., 175 N.C. App. 760 (2006). Instead, the court should adjudicate the juvenile responsible for the lesser-included offense which has been sufficiently proved.
If the defense fails to move for a dismissal based on a fatal variance at the close of the state’s evidence (or at the close of all evidence, if the juvenile presents evidence) then the issue is waived on appeal. See State v. Bell, 270 N.C. 25 (1967); State v. Broome, 136 N.C. App. 82 (1999); State v. Curry, 203 N.C. App. 375 (2010).
As a general rule, if a juvenile petition is dismissed for either a jurisdictional defect or a fatal variance, this should not raise a double jeopardy bar which would prevent the state from re-charging the proper offense and proceeding on that new petition. For more detailed information on this topic, see the related entry on Double Jeopardy – Mistrial, Retrial and Appeal.
Amending or Replacing Petition
If the petition is defective, or if the state wants to proceed on a different charge for some other reason (e.g., a negotiated plea agreement to a lesser offense), the options for changing or replacing the petition are as follows:
If the petition is fundamentally flawed as described above (e.g., fails to state a necessary element or incorrectly identifies the victim), then the only appropriate remedy is to replace it with a new petition that correctly alleges the desired offense. This process is less burdensome for the state than it sounds, for two reasons. First, the prosecutor may sign as the complainant (as long as the court counselor approves), so a new petition can be drafted fairly quickly and signed by the prosecutor in court. See In re Stowe, 118 N.C. App. 662 (1995). Second, since the court counselor already conducted the statutorily required intake evaluation for the first petition, it should not be necessary to conduct a new evaluation, as long as the facts and circumstances remain fundamentally the same. See In re T.H., 218 N.C. App. 123 (2012) (intake interview is not necessary when court counselor already has enough information to evaluate the complaint).
What about the 15 day time limit?
Under G.S. 1703(b), a juvenile petition is supposed to be approved for filing within 15 days of presentation of the complaint (with the option of one extension for an additional 15 days, if authorized by the chief court counselor). If the new petition is being drafted more than 15 days after the original complaint came in, the defense may argue that it’s untimely.
The prosecutor should respond that: (a) this is a new complaint and petition, which is based on previously known information but it is only just now being presented, so it’s not out of time; and (b) even if it is out of time, those time limits are only directive and not jurisdictional, so the court is still permitted to hear the case. See In re D.S., 364 N.C. 184 (2010); In re J.A.G., 206 N.C. App. 318 (2010).
If the defect is relatively minor (e.g., misspelling of victim’s name or a minor error in date of offense), G.S. 7B-2400 specifically authorizes the prosecutor to move to amend a juvenile petition as long as the amendment does not “change the nature of the offense alleged,” which means the amended petition would charge the juvenile with a new or different offense from what was in the original petition. See In re Davis, 114 N.C. App. 253 (1994). For more information on the types of changes and corrections that can typically be made through an amendment, see the related entry on Pleadings – Amending, Replacing, or Recharging.
Plea to Lesser-included Offense
No change to the petition is necessary for the juvenile to enter a plea (“admission”) to a lesser-included offense, such as a negotiated plea to misdemeanor larceny on a petition alleging felony larceny. The court has authority to adjudicate a juvenile delinquent and enter disposition for any lesser-included offense supported by the petition, and the same principle allows the court to accept a juvenile’s admission to such an offense. See G.S. 15-170; State v. Riera, 276 N.C. 361 (1970); In re I.R.T., 184 N.C. App. 579 (2007); In re J.H., 177 N.C. App. 776 (2006); In re B.D.W., 175 N.C. App. 760 (2006); State v. Daniels, 51 N.C. App. 294 (1981).
Plea to a New or Different Offense
If the prosecutor wishes to negotiate a plea with the juvenile to an offense which is neither charged in the petition nor a lesser-included offense of any allegations in the petition (e.g., a negotiated plea down to misdemeanor communicating threats based on a petition alleging a felony assault), then a new petition is required. A petition is the only approved pleading in juvenile court, so alternatives such as Misdemeanor Statement of Charges are not available. See G.S. 7B-1801. (But see #1 above for suggestions on how to do an expedited preparation and filing of a new petition with the prosecutor as the complainant.)
Charging a new and more serious offense?
There is no inherent bar to the state proceeding on a new petition which charges the juvenile with a more serious offense, as long as it is not being done as “retaliation” against the juvenile (e.g., as punishment for denying the allegations and requesting a hearing). See In re N.B., 167 N.C. App. 305 (2004) (no due process violation where state charged juvenile with a felony assault after she denied allegations of misdemeanor assault – no evidence of retaliatory motivation). For example, if a juvenile is charged with misdemeanor larceny but the officer later discovers that additional property worth thousands of dollars was also stolen and the offense should have been charged as a felony, the state is not “stuck” with the original petition as long as jeopardy has not yet attached.
If the state proceeds on a new petition (either to correct a defect or as part of a negotiated plea), the prosecutor should file a voluntary dismissal on the original petition. Every petition filed in juvenile court is treated as a new action, and there is no statutory provision for filing a “superseding” juvenile petition. Therefore, if the original petition is not dismissed, it will still be listed in the clerk’s records as a duplicative pending case.