101.3Jurisdiction of Officers and Judicial Officials

The preceding entries addressed the question of whether the state or the court had jurisdiction to hear a particular criminal case. This entry briefly addresses the more specific questions of whether and when particular officers, prosecutors, judges, magistrates, and clerks have authority to take action related to a criminal case.

Jurisdiction of Law Enforcement Officers

Sworn law enforcement officers have two kinds of jurisdiction:

1. Subject Matter Jurisdiction
This type of jurisdiction refers to the offenses that a law enforcement officer may investigate and charge. Most law enforcement officer have subject matter jurisdiction over all criminal offenses and infractions under North Carolina or local law, regardless of whether the officer is assigned to a specific departmental unit such as narcotics or homicide investigations. Similarly, officers and agents employed by the state generally have authority to investigate and charge all criminal offenses, even though they typically focus on one particular type of crime. See, e.g., G.S. 18B-500(b) (stating that Alcohol Law Enforcement (“ALE”) agents have a “primary responsibility” to enforce alcohol and lottery laws, but they also have authority to investigate and arrest for any other criminal offense); see also G.S. 113-116 (Wildlife Resources Commission officers authorized to enforce and arrest for various offenses beyond the scope of the department).

Many police officers work second jobs such as providing security at nightclubs and private events, or they may carry their firearm and drive a department-issued vehicle even when they are off duty, in case they are unexpectedly needed. In most cases, such officers are still empowered to respond to calls for service, investigate crimes, and arrest suspects even when they are otherwise employed or off the clock. See, e.g., State v. Gaines, 332 N.C. 461 (1992) ("A police officer when off duty is still an officer and a policeman having the authority, if not indeed the duty to exercise functions pertaining to his office in appropriate circumstances, without regard to departmental rules relating to hours. [...] With regard to our laws dealing with a law enforcement officer's duties as to arrest or search, there is no distinction between on-duty and off-duty status [...] unless it is clear from the nature of his activities that he is acting solely on behalf of a private entity, or is engaged in some frolic or private business of his own."); State v. Locklear, 136 N.C. App. 716 (2000); State v. Pope, 122 N.C. App. 89 (1996); see also G.S. 74C-21 (police officers are allowed to work as security for private associations, firms, and businesses, but if the officer is working directly as an employee of a "licensed security guard and patrol company" then the officer may not wear his or her police uniform or use police equipment while working for that company).

2. Territorial Jurisdiction
This type of jurisdiction refers to the places where a law enforcement officer or agent may exercise his or her law enforcement authority. For state law enforcement agents, jurisdiction is set by statute and typically covers the entire state. See, e.g., G.S. 18B-500(c) (ALE agents have “jurisdiction throughout the state”). For local officers (e.g., city, county, or university), their jurisdiction is typically the area within the limits of the entity for which they work, plus one mile outside those limits. See G.S. 15A-402 (territorial jurisdiction of officers); G.S. 160A-286 (municipal police officers have “all the powers invested in law-enforcement officers by statute or common law within one mile of the corporate limits of the city.”). This includes non-contiguous areas of the municipality (“satellite areas”), and other property owned or leased by the municipality, as well as any rights of way it owns. See G.S. 160A-58, et seq; 160A-286; 15A-402(b). Additionally, officers have jurisdiction outside their statutory limits when they are in hot pursuit of a suspect. See G.S. 15A-402(d). Officers may also be permitted to act outside their normal jurisdiction when specifically authorized by other means, such as a mutual aid agreement or expanded jurisdiction related to DWI offenses under G.S. 20-38.2. E.g., State v. Scruggs, 209 N.C. App. 725 (2011).

If a law enforcement officer or state agent arrests a person outside of his or her territorial jurisdiction, that action may be "statutorily improper," but it will only result in a dismissal of the case or suppression of the evidence if it constituted a "substantial violation" of the criminal procedure statutes. See Virginia v. Moore, 553 U.S. 164 (2008); State v. Melvin, 53 N.C. App. 421 (1981); State v. Harris, 43 N.C. App. 346 (1979); State v. Mangum, 30 N.C. App. 311 (1976); State v. Williams, 31 N.C. App. 237 (1976). In determining whether a violation was "substantial," the court will consider: the importance of the particular interest violated; the extent of the deviation from lawful conduct; the extent to which the violation was willful; and the extent to which exclusion or dismissal will help to deter future violations. See State v. Williams, 31 N.C. App. 237 (1976); accord, State v. Pearson, 131 N.C. App. 315 (1998) (finding that officer's action in administering an Intoxylizer test outside his territorial jurisdiction was not contrary to statutory authority, but even if it had been, "this technical violation would not be so serious as to consitute a 'substantial violation' of defendant's rights"); State v. Little, 220 N.C. App. 524 (2012) (unpublished) (finding that the trial court properly denied the defendant’s motion to suppress as the “search by the Albemarle Police Department officer outside of his territorial jurisdiction did not constitute a substantial violation of Chapter 15A”).

Jurisdiction of District Attorney

North Carolina is divided into 43 prosecutorial districts. The powers and duties of the elected District Attorneys for each district, along with the Assistant District Attorneys, investigators, and other staff in the office, are set forth in Chapter 7A, Article 9. In short, each District Attorney is responsible for the following matters in his or her prosecutorial district:

1. Overseeing the prosecution of criminal cases;
2. Giving advice to law enforcement officers;
3. Representing the state in juvenile matters; and
4. Providing records and other materials as needed to the Attorney General for the purpose of conducting appeals arising out of that prosecutorial district.

See G.S. 7A-61 (district attorney is responsible for prosecuting "all criminal actions and infractions requiring prosecution in the superior and district courts of the district attorney's prosecutorial district"); Paul L. Whitfield, P.A. v. Gilchrist, 126 N.C. App. 241 (1997), reversed on other grounds, 348 N.C. 39 (1998) ("District attorneys are independent constitutional officers, expressly vested by our Constitution and/or by statute with the responsibility for prosecution of criminal actions and infractions in the superior and district courts of their prosecutorial districts"); see also G.S. 7A-63 ("An assistant district attorney shall take the same oath of office as the district attorney, and shall perform such duties as may be assigned by the district attorney"); State v. Rimmer, 25 N.C. App. 637, certiorari denied 288 N.C. 250 (1975) (an assistant district attorney is "fully authorized to carry out such duties of the district attorney as the district attorney may assign to him").

The District Attorney may also act in other areas or on other matters if they are specifically authorized by statute. See, e.g., G.S. 19-2.1 (district attorney is authorized to pursue a civil action to abate a nuisance, such as an establishment used for prostitution or the sale of illegal drugs or alcohol, and "enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a nuisance"); State ex rel. Jacobs v. Sherard, 36 N.C. App. 60 (1978) ("The case sub judice is based on the allegation that the dwelling house was being used and operated by defendants as a place to sell tax paid whiskey. [...] Under the circumstances the District Attorney not only had authority to maintain the action but it was his implied duty to do so as an advocate of the State's interest in the protection of society.").

Jurisdiction of Individual Judges

As a general rule, judges only have jurisdiction to hear matters and make rulings: (i) during the session of court; (ii) in the county and district where the judge is assigned; and (iii) in the county and district where the matter arose. Subject to a number of exceptions (discussed below), any action taken or order issued on the case that does not satisfy these three criteria is void. See State v. Trent, 359 N.C. 583 (2005); citing to Capital Outdoor Adver., Inc. v. City of Raleigh, 337 N.C. 150 (1994) (noting that “the use of ‘term’ has come to refer to the typical six-month assignment of superior court judges, and ‘session’ to the typical one-week assignments within the session”); see also State v. Humphrey, 186 N.C. 533 (1923); State v. Sams, 317 N.C. 230 (1986). The consent of the parties is not sufficient to cure a defect and confer jurisdiction. See State v. Earley, 24 N.C. App. 387 (1975).

There are several exceptions to this rule which allow a judge to act in circumstances beyond the scope of the three criteria stated above:

1. In-chambers Jurisdiction
This type of jurisdiction, also termed jurisdiction “in vacation,” see G.S. 7A-47.1, grants superior court judges jurisdiction to hear matters out-of-session.  It applies under the following conditions:

a. The judge must be a resident judge in (or currently assigned to or residing in) the district;

b. The hearing must concern a non-jury matter; and

c. The hearing must be in the county in which the matter arose, unless the parties agree to be heard outside the county.

The statute says the parties must “unite” to present the matter to the court in vacation, but this has been interpreted to mean something less than an explicit requirement that all parties must “consent” to the proceeding. See E-B Grain Co. v. Denton, 73 N.C. App. 14 (1985) (affirming trial court which heard a motion for summary judgement on Saturday, out of session, and over defendant’s objection); see also In re Burton, 257 N.C. 534 (1962) (noting that "matters and proceedings not requiring the intervention of a jury or in which trial by jury has been waived may be heard in vacation," but invalidating the trial court's order entered on a different matter where "there was no request or consent for such hearing by either of the parties").

By statute, district court judges have similar authority to hear certain matters in chambers. See G.S. 7A-191 (“all other proceedings” besides trial on the merits may be held in chambers); GS. 7A-192 (chief district court judge must first grant authority to judge to hear matters in chambers); see also Stroupe v. Stroupe, 301 N.C. 656 (1981); Austin v. Austin, 12 N.C. App. 286 (1971); but see G.S. 7A-191.1 (plea to H or I felony must be on the record).

2. Extending Session to Complete Trial
If a trial in superior court is not concluded by the end of the current court session (which typically means Friday), the court may extend the session to finish the trial. See G.S. 15-167; State v. Locklear, 174 N.C. App. 547 (2005) (statute calls for a written order extending session, but announcing in open court with no objection was sufficient); State v. Hunt, 198 N.C. App. 488 (2009). As long as the defendant only faces a continuation of the existing trial, and not a second or ‘renewed’ trial on the same charges, there is no double-jeopardy violation by extending the session and resuming presentation of evidence. See State v. Carter, 289 N.C. 35 (1975) (also holding that continuance and extension of the session did not cause a speedy trial violation); vacated in part on other grounds, 428 U.S. 904 (1976); State v. Coats, 17 N.C. App. 407 (1973).

Extension of the session is similarly authorized for a district court conducting a juvenile adjudication hearing. See G.S. 7B-2406. The district court’s ability to extend a session in order to complete a trial in other comparable contexts (e.g., a misdemeanor trial that carries over to the next day) is not specifically addressed by the statute, but is generally accepted practice.

3. Entering Order After Session
The general rule is that a judge’s order must be entered during the same session in which the motion was heard, unless the parties consent to having it entered later, or else the order is not valid. See State v. Trent, 359 N.C. 583 (2005) ("an order of the superior court, in a criminal case, must be entered during the term, during the session, in the county[,] and in the judicial district where the hearing was held. Absent consent of the parties, an order entered in violation of these requirements is null and void and without legal effect"). However, there are two notable exceptions to this rule.

First, the "in-chambers jurisdiction" mentioned above has been held to permit a judge to enter his or her order even after the session has ended, and regardless of the consent of the parties, as long as it is: (i) entered during the same term (i.e., before the end of the judge's current 6-month superior court assignment), and (ii) the judge is still presiding within the same district. See State v. Collins, 234 N.C. App. 398 (2014) (per G.S. 7A-47.1, the judge’s order denying request for post-conviction DNA testing was valid and the consent of the parties was not required, even though session had ended and judge was sitting in a different county within the district when he signed the order, since the hearing itself had taken place in the proper county and the term of court had not yet ended).

Second, if the judge announces a ruling on the matter during the session, he or she may enter the written order containing the findings of fact and conclusions of law after the session (or even the term) has ended, as long as the delay is not prejudicial to the defendant. See State v. Wilson, 225 N.C. App. 498 (2013) (statute does not require immediate entry of findings and conclusions); State v. Horner, 310 N.C. 274 (1984) (no error in case where "the trial judge ruled on each of the objects of the motion to suppress at the time of trial" and then "later reduced his ruling to writing, signed the order, and filed it with the clerk" because "[t]he statute does not require that the findings be made in writing at the time of the ruling" and "[e]ffective appellate review is not thwarted by the subsequent order").

4. Imposing Sentence After Session
A trial court is authorized to continue sentencing to a later date, as long it acts within a “reasonable time.” State v. Degree, 110 N.C. App. 638 (1993); State v. Lea, 156 N.C. App. 178 (2003); G.S. 15A-1334. If the sentence is not entered within a reasonable time, the court loses jurisdiction. Id.; see also State v. Craven, 205 N.C. App. 393 (2010), rev’d in part on other grounds, 367 N.C. 51 (2013).

5. Modifying Sentence After Session
The court has authority to modify (alter, amend, suspend) its judgment during the original session of court, see State v. Sammartino, 120 N.C. App. 597 (1995), or to do so upon a motion for appropriate relief made within ten  days of judgment, if based on the grounds state in G.S. 15A-1414 (defendant’s motion) or G.S. 15A-1416 (state’s motion). After ten days, the court may only alter a sentence if it is unlawful or necessary to correct a clerical error. See State v. Roberts, 351 N.C. 325 (2000); State v. Petty, 212 N.C. App. 368 (2011); State v. Jarman, 140 N.C. App. 198 (2000). For a more thorough discussion of judges’ authority to correct errors in judgments after they have been entered, see "Trial Judge's Authority to Sua Sponte Correct Errors," Jessica Smith, Administration of Justice Bulletin, May 2003.

6. Writ of Habeas Corpus
Any person imprisoned in the state may apply for a writ of habeas corpus to any appellate or superior court judge in the state. See G.S. 17-1; G.S. 17-6. If the judge decides to grant a hearing on the matter, he or she will likely be acting on the case long after the original term and session of court have ended, but this is implicitly authorized by the habeas statute itself. See In re Burton, 257 N.C. 534 (1962).

Trial Judges’ Jurisdiction After Appeal

The general rule, referred to as “functus officio,” is that once an appeal has been filed, the trial court no longer has jurisdiction over the matters appealed, and may not enter further orders on those matters. See G.S. 1-294. However, even after a notice of appeal has been given, the court still has the powers described above to make amendments or modifications to the judgment prior to the expiration of the session. See State v. Hill, 294 N.C. 320 (1978); State v. Grundler, 251 N.C. 177 (1959).

The functus officio rule only becomes effective as of the time the appeal is perfected (i.e., docketed); however, once perfected it relates back to the time of the original notice of appeal, so any additional trial court orders regarding the matters appealed which are entered after the date of the notice of appeal will be void. See Swilling v. Swilling, 329 N.C. 219 (1991) (amended order assessing witness fees, entered after appeal was perfected, was void). But the judge does retain a number of other powers related to the appeal itself (settling record, extending time to prepare record, determining if appeal has been abandoned), correcting the records, and hearing certain types of post-judgment and motions for appropriate relief.

For a more detailed explanation of the court’s functus officio ability to act, see "Functus Officio," Michael Crowell, Superior Court Judges' Benchbook, July 2014.

Magistrates and Clerks

The authority of magistrates and clerks is delineated by statute in G.S. 7A-273 (magistrates) and G.S. 7A-180 and G.S. 7A-181 (clerks).

Magistrates have the power to:

1. Accept guilty pleas or admissions of responsibility to minor infractions (fine less than $50), Class 3 misdemeanors, and waivable offenses;

2. Hold trials on worthless check charges if the amount is less than $2000, and under conditions set forth in the statute;

3. Issue search warrants, which are valid in the county where they are issued;

4. Issue arrest warrants, which are valid anywhere in the state;

5. Conduct initial appearances; and

6. Set pre-trial release conditions for most non-capital offenses;

 Clerks, in addition to their regular record-keeping and administrative duties, also have the power to:

1. Accept written appearances, waivers of trial or hearing, and pleas of guilty to waivable offenses;

2. Accept written appearances, waivers of trial, and guilty pleas to worthless check charges if the amount is less than $2000, and under conditions set forth in the statute;

3. Issue search warrants, which are valid in the county where they are issued;

4. Issue arrest warrants, which are valid anywhere in the state;

5. Conduct initial appearances; and

6. Set pre-trial release conditions.