North Carolina § 15A-1008 - Dismissal of charges.

§ 15A-1008. Dismissal of charges.

When a defendant lacks capacity to proceed, the court shall dismiss the charges upon the earliest of the following occurrences: When it appears to the satisfaction of the court that the defendant will not gain capacity to proceed. When as a result of incarceration, involuntary commitment to an inpatient facility, or other court-ordered confinement, the defendant has been substantially deprived of his liberty for a period of time equal to or in excess of the maximum term of imprisonment permissible for prior record Level VI for felonies or prior conviction Level III for misdemeanors for the most serious offense charged. Upon the expiration of a period of five years from the date of determination of incapacity to proceed in the case of misdemeanor charges and a period of 10 years in the case of felony charges. A dismissal entered pursuant to subdivision (2) of subsection (a) of this section shall be without leave. A dismissal entered pursuant to subdivision (1) or (3) of subsection (a) of this section shall be issued without prejudice to the refiling of the charges. Upon the defendant becoming capable of proceeding, the prosecutor may reinstitute proceedings dismissed pursuant to subdivision (1) or (3) of subsection (a) of this section by filing written notice with the clerk, with the defendant, and with the defendant's attorney of record. Dismissal of criminal charges pursuant to this section shall be upon motion of the prosecutor or the defendant or upon the court's own motion. History (1973, c. 1286, s. 1; 2013-18, s. 5.) Effect of Amendments. - Session Laws 2013-18, s. 5, effective December 1, 2013, designated the formerly undesignated introductory paragraph as present subsection (a), and therein substituted "shall" for "may" and added "upon the earliest of the following occurrences" at the end; in subdivision (a)(2), added "as a result of incarceration, involuntary commitment to an inpatient facility, or other court-ordered confinement" and substituted "term of imprisonment permissible for prior record Level VI for felonies or prior conviction Level III for misdemeanors for the most serious offense charged" for "permissible period of confinement for the crime or crimes charged"; added subsections (b) through (d); and made minor punctuation changes. For applicability, see Editor's note. Legal Periodicals. - For comment, "Out of Sight, Out of Mind: Indefinite Confinement and the Unconstitutional Treatment of North Carolinians with Mental Retardation," see 35 Campbell L. Rev. 257 (2013).