§ 15A-1420. Motion for appropriate relief; procedure. - North Carolina Statutes - USA Laws Searching

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§ 15A-1420. Motion for appropriate relief; procedure.

§ 15A‑1420.  Motion forappropriate relief; procedure.

(a)        Form, Service,Filing.

(1)        A motion forappropriate relief must:

a.         Be made in writingunless it is made:

1.         In open court;

2.         Before the judge whopresided at trial;

3.         Before the end ofthe session if made in superior court; and

4.         Within 10 days afterentry of judgment;

b.         State the groundsfor the motion;

c.         Set forth the reliefsought;

c1.       If the motion forappropriate relief is being made in superior court and is being made by anattorney, the attorney must certify in writing that there is a sound legalbasis for the motion and that it is being made in good faith; and that theattorney has notified both the district attorney's office and the attorney whoinitially represented the defendant of the motion; and further, that theattorney has reviewed the trial transcript or made a good‑faithdetermination that the nature of the relief sought in the motion does notrequire that the trial transcript be read in its entirety. In the event thatthe trial transcript is unavailable, instead of certifying that the attorneyhas read the trial transcript, the attorney shall set forth in writing whatefforts were undertaken to locate the transcript; and

d.         Be timely filed.

(2)        A written motion forappropriate relief must be served in the manner provided in G.S. 15A‑951(b).When the written motion is made more than 10 days after entry of judgment,service of the motion and a notice of hearing must be made not less than fiveworking days prior to the date of the hearing. When a motion for appropriaterelief is permitted to be made orally the court must determine whether thematter may be heard immediately or at a later time. If the opposing party, orhis counsel if he is represented, is not present, the court must provide forthe giving of adequate notice of the motion and the date of hearing to theopposing party, or his counsel if he is represented by counsel.

(3)        A written motion forappropriate relief must be filed in the manner provided in G.S. 15A‑951(c).

(4)        An oral or writtenmotion for appropriate relief may not be granted in district court without thesignature of the district attorney, indicating that the State has had anopportunity to consent or object to the motion. However, the court may grant amotion for appropriate relief without the district attorney's signature 10business days after the district attorney has been notified in open court ofthe motion, or served with the motion pursuant to G.S. 15A‑951(c).

(5)        An oral or writtenmotion for appropriate relief made in superior court and made by an attorneymay not be granted by the court unless the attorney has complied with therequirements of sub‑subdivision c1. of subdivision (1) of thissubsection.

(b)        SupportingAffidavits.

(1)        A motion for appropriaterelief made after the entry of judgment must be supported by affidavit or otherdocumentary evidence if based upon the existence or occurrence of facts whichare not ascertainable from the records and any transcript of the case or whichare not within the knowledge of the judge who hears the motion.

(2)        The opposing partymay file affidavits or other documentary evidence.

(b1)      Filing Motion WithClerk; Review of Motion by Judge.

(1)        The proceeding shallbe commenced by filing with the clerk of superior court of the district whereinthe defendant was indicted a motion, with service on the district attorney innoncapital cases, and service on both the district attorney and AttorneyGeneral in capital cases.

(2)        The clerk, uponreceipt of the motion, shall place the motion on the criminal docket. The clerkshall promptly bring the motion, or a copy of the motion, to the attention ofthe resident judge or any judge holding court in the county or district. Innoncapital cases, the judge shall review the motion and enter an order whetherthe defendant should be allowed to proceed without the payment of costs, withrespect to the appointment of counsel, and directing the State, if necessary,to file an answer. In capital cases, the judge shall review the motion andenter an order directing the State to file its answer within 60 days of thedate of the order. If a hearing is necessary, the judge shall calendar the casefor hearing without unnecessary delay.

(c)        Hearings, Showingof Prejudice; Findings.

(1)        Any party isentitled to a hearing on questions of law or fact arising from the motion andany supporting or opposing information presented unless the court determinesthat the motion is without merit. The court must determine, on the basis ofthese materials and the requirements of this subsection, whether an evidentiaryhearing is required to resolve questions of fact. Upon the motion of eitherparty, the judge may direct the attorneys for the parties to appear before himfor a conference on any prehearing matter in the case.

(2)        An evidentiaryhearing is not required when the motion is made in the trial court pursuant toG.S. 15A‑1414, but the court may hold an evidentiary hearing if it isappropriate to resolve questions of fact.

(3)        The court mustdetermine the motion without an evidentiary hearing when the motion andsupporting and opposing information present only questions of law. Thedefendant has no right to be present at such a hearing where only questions oflaw are to be argued.

(4)        If the court cannotrule upon the motion without the hearing of evidence, it must conduct a hearingfor the taking of evidence, and must make findings of fact. The defendant has aright to be present at the evidentiary hearing and to be represented bycounsel. A waiver of the right to be present must be in writing.

(5)        If an evidentiaryhearing is held, the moving party has the burden of proving by a preponderanceof the evidence every fact essential to support the motion.

(6)        A defendant whoseeks relief by motion for appropriate relief must show the existence of theasserted ground for relief. Relief must be denied unless prejudice appears, inaccordance with G.S. 15A‑1443.

(7)        The court must ruleupon the motion and enter its order accordingly. When the motion is based uponan asserted violation of the rights of the defendant under the Constitution orlaws or treaties of the United States, the court must make and enterconclusions of law and a statement of the reasons for its determination to theextent required, when taken with other records and transcripts in the case, toindicate whether the defendant has had a full and fair hearing on the merits ofthe grounds so asserted.

(d)        Action on Court'sOwn Motion. – At any time that a defendant would be entitled to relief by motionfor appropriate relief, the court may grant such relief upon its own motion.The court must cause appropriate notice to be given to the parties.  (1965, c. 352, s. 1; 1973,c. 47, s. 2; 1977, c. 711, s. 1; 1995 (Reg. Sess., 1996), c. 719, ss. 3, 4; 2006‑253,s. 30; 2009‑517, s. 1.)