State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_15A > GS_15A-301

SUBCHAPTER III. CRIMINALPROCESS.

Article 17.

Criminal Process.

§ 15A‑301.  Criminalprocess generally.

(a)        FormalRequirements. –

(1)        A record of eachcriminal process issued in the trial division of the General Court of Justicemust be maintained in the office of the clerk in either paper form or inelectronic form in the Electronic Repository as provided in G.S. 15A‑301.1.

(2)        Criminal process,other than a citation, must be signed and dated by the justice, judge,magistrate, or clerk who issues it. The citation must be signed and dated bythe law‑enforcement officer who issues it.

(b)        To Whom Directed. –Warrants for arrest and orders for arrest must be directed to a particularofficer, a class of officers, or a combination thereof, having authority and territorialjurisdiction to execute the process. A criminal summons must be directed to theperson summoned to appear and must be delivered to and may be served by any law‑enforcementofficer having authority and territorial jurisdiction to make an arrest for theoffense charged, except that in those instances where the defendant is calledinto a law‑enforcement agency to receive a summons, any employee sodesignated by the agency's chief executive officer may serve a criminal summonsat the agency's office. The citation must be directed to the person cited toappear.

(c)        Service. –

(1)        A law‑enforcementofficer or other employee designated as provided in subsection (b) receivingfor service or execution a criminal process that was first created and exists onlyin paper form must note thereon the date and time of its receipt. A lawenforcement officer receiving a copy of a criminal process that was printed inpaper form as provided in G.S. 15A‑301.1 shall cause the date of receiptto be recorded as provided in that section. Upon execution or service, a copyof the process must be delivered to the person arrested or served.

(2)        A corporation may beserved with criminal summons as provided in G.S. 15A‑773.

(d)        Return. –

(1)        The officer or otheremployee designated as provided in subsection (b) who serves or executes acriminal process that was first created and exists only in paper form mustenter the date and time of the service or execution on the process and returnit to the clerk of court in the county in which issued. The officer or otheremployee designated as provided in subsection (b) of this section who serves orexecutes a copy of a criminal process that was printed in paper form asprovided in G.S. 15A‑301.1 shall promptly cause the date of the service orexecution to be recorded as provided in that section.

(2)        If criminal processthat was created and exists only in paper form is not served or executed withina number of days indicated below, it must be returned to the clerk of court inthe county in which it was issued, with a reason for the failure of service orexecution noted thereon.

a.         Warrant for arrest –180 days.

b.         Order for arrest –180 days.

c.         Criminal summons –90 days or the date the defendant is directed to appear, whichever is earlier.

(3)        Failure to returnthe process to the clerk as required by subdivision (2) of this subsection doesnot invalidate the process, nor does it invalidate service or execution madeafter the period specified in subdivision (2).

(4)        The clerk to whichreturn of a criminal process that was created and exists only in paper form ismade may redeliver the process to a law‑enforcement officer or otheremployee designated as provided in subsection (b) for further attempts atservice. If the process is a criminal summons, he may reissue it only uponendorsement of a new designated time and date of appearance.

(e)        Copies to Be Madeby Clerk. –

(1)        The clerk may make acertified copy of any criminal process that was created and exists only inpaper form filed in his office pursuant to subsection (a) when the originalprocess has been lost or when the process has been returned pursuant tosubdivision (d)(2). The copy may be executed as effectively as the originalprocess whether or not the original has been redelivered as provided in G.S.15A‑301(d)(4).

(2)        When criminalprocess is returned to the clerk pursuant to subdivision (d)(1) and it appearsthat the appropriate venue is in another county, the clerk must make and retaina certified copy of the process and transmit the original process to the clerkin the appropriate county.

(3)        Upon request of adefendant, the clerk must make and furnish to him without charge one copy ofevery criminal process filed against him.

(4)        Nothing in thissection prevents the making and retention of uncertified copies of process forinformation purposes under G.S. 15A‑401(a)(2) or for any other lawfulpurpose.

(f)         Protection ofProcess Server. – An officer or other employee designated as provided insubsection (b), and serving process as provided in subsection (b), receivingunder this section or under G.S. 15A‑301.1 criminal process which iscomplete and regular on its face may serve the process in accordance with itsterms and need not inquire into its regularity or continued validity, nor doeshe incur criminal or civil liability for its due service.

(g)        Recall of Process –Authority. – A criminal process that has not been served on the defendant,other than a citation, shall be recalled by a judicial official or by a personauthorized to act on behalf of a judicial official as follows:

(1)        A warrant orcriminal summons shall be recalled by the issuing judicial official when thatofficial determines that probable cause did not exist for its issuance.

(2)        Any criminal processother than a warrant or criminal summons may be recalled for good cause by anyjudicial official of the trial division in which it was issued. Good causeincludes, without limitation, the fact that:

a.         A copy of theprocess has been served on the defendant.

b.         All charges on whichthe process is based have been disposed.

c.         The person named asthe defendant in the process is not the person who committed the chargedoffense.

d.         It has beendetermined that grounds for the issuance of an order for arrest did not exist,no longer exist or have been satisfied.

(3)        The disposition ofall charges on which a process is based shall effect the recall, withoutfurther action by the court, of that process and of all other outstandingprocess issued in connection with the charges, including all orders for arrestissued for the defendant's failure to appear to answer the charges.

When the process was firstcreated and exists only in paper form, the recall shall promptly becommunicated by any reasonable means to each law enforcement agency known to bein possession of the original or a copy of the process, and each agency shallpromptly return the process to the court, unserved. When the process is in theElectronic Repository, the recall shall promptly be entered in the ElectronicRepository, and no further copies of the process shall be printed in paperform. The recall shall also be communicated by any reasonable means to eachagency that is known to be in possession of a copy of the process in paper formand that does not have remote electronic access to the Electronic Repository. (1868‑9, c. 178, subch.3, s. 4; Code, s. 1135; Rev., s. 3159; C.S., s. 4525; 1957, c. 346; 1969, c.44, s. 28; 1973, c. 1286, s. 1; 1975, 2nd Sess., c. 983, ss. 136, 137; 1979, c.725, ss. 1‑3; 1989, c. 262, s. 3; 2002‑64, s. 3.)