                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-656

                               Filed: 6 December 2016

Caldwell County, No. 12 CRS 52634

STATE OF NORTH CAROLINA

             v.

CHRISTOPHER GLENN TURNER


      Appeal by the State from order entered 15 January 2016 by Judge Michael D.

Duncan in Caldwell County Superior Court.           Heard in the Court of Appeals 18

October 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Christopher W.
      Brooks, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel L.
      Spiegel, for defendant-appellee.


      CALABRIA, Judge.


      The express language of N.C. Gen. Stat. § 15-1 required the State to prosecute

defendant’s misdemeanor charge within two years. Because the State failed to take

any action in that time, prosecution was barred by the statute of limitations, and the

trial court did not err in dismissing the charge.

                        I. Factual and Procedural Background

      On 7 August 2012, Christopher Glenn Turner (“defendant”) received a citation

for driving while impaired. Defendant was arrested and brought before a magistrate,
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                                    Opinion of the Court



who issued a magistrate’s order.       Defendant was never charged via indictment,

presentment, or warrant.

      On 26 November 2014, defendant moved to dismiss the charge, pursuant to

N.C. Gen. Stat. §§ 15-1, 15A-953, and 15A-954, alleging the expiration of the statute

of limitations. On 3 December 2014, defendant moved that he be charged in a new

pleading, pursuant to N.C. Gen. Stat. § 15A-922(c). Judge Amy. S. Walker (“Judge

Walker”), a District Court Judge in Caldwell County, held a hearing in response to

defendant’s motions.    On 22 April 2015, Judge Walker entered a preliminary

indication, holding that the statute of limitations barred prosecution of defendant.

The State appealed to superior court.

      On 1 October 2015, the superior court affirmed Judge Walker’s preliminary

indication, citing the explicit language of N.C. Gen. Stat. § 15-1, and our Supreme

Court’s decision in State v. Underwood, 244 N.C. 68, 92 S.E.2d 461 (1956).

Thereafter, Judge Walker issued a final order of dismissal. The State appealed this

dismissal, and on 15 January 2016, the Superior Court of Caldwell County entered

an order affirming the dismissal.

      The State appeals.

                                II. Standard of Review

             “ ‘Questions of statutory interpretation are questions of
             law, which are reviewed de novo by an appellate court. In
             conducting this review, we are guided by the following
             principles of statutory construction.’ ” State v. Largent, 197


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             N.C. App. 614, 617, 677 S.E.2d 514, 517 (2009) (quoting In
             Re Proposed Assessments v. Jefferson-Pilot, 161 N.C. App.
             558, 559-60, 589 S.E.2d 179, 180-81 (2003)). “Where the
             language of a statute is clear and unambiguous there is no
             room for judicial construction and the courts must give it
             its plain and definite meaning, and the courts are without
             power to interpolate, or superimpose, provisions and
             limitations not contained therein.” Id. (internal quotation
             marks and citations omitted).

State v. Williams, 218 N.C. App. 450, 451, 725 S.E.2d 7, 8-9 (2012).

      “When reviewing the trial court's grant of a criminal defendant's motion to

dismiss . . . [w]e review the trial court's conclusions of law de novo.” State v. Price,

233 N.C. App. 386, 389, 757 S.E.2d 309, 312 (citations omitted), writ denied, review

denied, appeal dismissed, 367 N.C. 508, 759 S.E.2d 90 (2014).

                              III. Statute of Limitations

      In its sole argument on appeal, the State contends that the trial court erred in

dismissing defendant’s driving while impaired charge because the citation tolled the

statute of limitations. We disagree.

      The General Statutes provide a statute of limitations with respect to

misdemeanors such as the one at issue:

             The crimes of deceit and malicious mischief, and the crime
             of petit larceny where the value of the property does not
             exceed five dollars ($5.00), and all misdemeanors except
             malicious misdemeanors, shall be presented or found by the
             grand jury within two years after the commission of the
             same, and not afterwards: Provided, that if any indictment
             found within that time shall be defective, so that no
             judgment can be given thereon, another prosecution may


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             be instituted for the same offense, within one year after the
             first shall have been abandoned by the State.

N.C. Gen. Stat. § 15-1 (2015) (emphasis added). By its explicit language, this statute

establishes a two-year statute of limitations on the misdemeanors listed.

      On appeal, however, the State contends that, pursuant to N.C. Gen. Stat. §§

15A-921 and 15A-922, a citation constitutes a criminal pleading. Specifically, a

“citation, . . . or magistrate's order serves as the pleading of the State for a

misdemeanor prosecuted in the district court[.]” N.C. Gen. Stat. § 15A-922(a) (2015).

The State contends that this tolled the statute of limitations.

      The State cites several cases in support of its position. Primarily, the State

relies upon our Supreme Court’s decision in State v. Underwood, 244 N.C. 68, 92

S.E.2d 461 (1956). The State contends that Underwood stands for the principle that,

upon the issuance of a criminal pleading, the statute of limitations is tolled. However,

we hold that the State’s reliance is misplaced.

      Underwood is a successor case to State v. Hedden, 187 N.C. 803, 123 S.E. 65

(1924). In Hedden, the defendant was arrested and charged with abandonment on

11 September 1921; a magistrate’s warrant issued 25 October 1922, and an

indictment issued on 1 November 1923, more than two years after the defendant’s

arrest. The defendant was subsequently tried, and his motion to dismiss was denied.

On appeal, our Supreme Court held:




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               There is no saving clause in this statute1 as to the effect of
               preliminary warrants before a justice of the peace or other
               committing magistrate, and in our opinion on the facts of
               this record the law must be construed and applied as
               written. There must be a presentment or indictment
               within two years from the time of the offense committed
               and not afterwards.

Id. at 805, 123 S.E. at 65. The Supreme Court held that the trial court erred in

denying the defendant’s motion to dismiss, and reversed.

       More than thirty years later, Underwood revisited Hedden. In Underwood, the

defendant was tried upon a warrant, which was issued on 29 June 1953. He appealed

the matter to superior court, and raised the issue of the statute of limitations, moving

to dismiss. This motion was denied, and the defendant appealed. Underwood, 244

N.C. at 69, 92 S.E.2d at 461-62. Our Supreme Court distinguished Underwood from

Hedden, noting that Hedden “involved an entirely different factual situation from

that involved in the present appeal.” Id. at 70, 92 S.E.2d at 463. The Court then

went on to hold that, “[i]n criminal cases where an indictment or presentment is

required, the date on which the indictment or presentment has been brought or found

by the grand jury marks the beginning of the criminal proceeding and arrests the

statute of limitations.” Id. As a result, the Court found no error with the trial court’s

denial of the defendant’s motion to dismiss.




       1 The statute in question was C.S. § 4512, a predecessor to N.C. Gen. Stat. § 15-1, which had
substantially similar language.

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                                  Opinion of the Court



      In the roughly sixty years since Underwood was decided, that case has only

been held to apply to indictments, presentments, and warrants; never once has it

been applied to citations or other forms of criminal pleading. See State v. Hundley,

272 N.C. 491, 493, 158 S.E.2d 582, 583-84 (1968) (a warrant tolls the statute of

limitations); State v. Gamez, 228 N.C. App. 329, 332, 745 S.E.2d 876, 878 (2013) (an

indictment or presentment tolls the statute of limitations); State v. Taylor, 212 N.C.

App. 238, 249-50, 713 S.E.2d 82, 90 (2011) (an indictment, presentment, or warrant

tolls the statute of limitations); State v. Whittle, 118 N.C. App. 130, 134, 454 S.E.2d

688, 690 (1995) (an indictment or presentment tolls the statute of limitations).

      The State’s arguments to the contrary notwithstanding, the language of N.C.

Gen. Stat. § 15-1 is explicit: misdemeanors, such as the matter in the instant case,

“shall be presented or found by the grand jury within two years after the commission

of the same, and not afterwards[.]” N.C. Gen. Stat. § 15-1. “Where the language of a

statute is clear and unambiguous there is no room for judicial construction and the

courts must give it its plain and definite meaning, and the courts are without power

to interpolate, or superimpose, provisions and limitations not contained therein.”

Williams, 218 N.C. App. at 451, 725 S.E.2d at 8-9 (citations and quotations omitted).

Further, Hedden explicitly held that “[t]here is no saving clause in this statute as to

the effect of preliminary warrants before a justice of the peace or other committing

magistrate, and in our opinion on the facts of this record the law must be construed



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and applied as written.” Hedden, 187 N.C. at 805, 123 S.E. at 65. And despite the

holding in Underwood, we note that that case was specifically limited to “those

misdemeanor cases in which the defendant may be tried in the Superior Court on a

warrant issued by an inferior court and without an indictment.” Underwood, 244

N.C. at 69, 92 S.E.2d at 462.

      We hold that Underwood, in which our Supreme Court considered whether a

superior court could try a defendant based on a warrant issued by an inferior court,

is distinguishable from the instant case. We further hold that the explicit language

of N.C. Gen. Stat. § 15-1, as interpreted in Hedden, is binding upon this Court. The

issuance of a citation did not toll the statute of limitations pursuant to N.C. Gen. Stat.

§ 15-1; the State had two years to either commence the prosecution of its case, or to

issue a warrant, indictment, or presentment which would toll the statute of

limitations. Because the State failed to do so, the statute of limitations expired, and

the State was barred from prosecuting this action. The trial court did not err in

dismissing the charge.

      AFFIRMED.

      Judges BRYANT and STEPHENS concur.




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