               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-584

                                   Filed: 2 July 2019

Catawba County, No. 13 CRS 57442

STATE OF NORTH CAROLINA

              v.

HARVEY LEE STEVENS, JR., Defendant.


        Appeal by the State from order entered 14 February 2017 by Judge Gregory R.

Hayes in Catawba County Superior Court. Heard in the Court of Appeals 11 April

2019.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General
        Christopher W. Brooks, for the State-appellant.

        Blair E. Cody, III for defendant-appellee.


        MURPHY, Judge.


        Defendant, Harvey Lee Stevens, Jr., was charged by citation for two counts of

misdemeanor death by motor vehicle. The State subsequently filed a misdemeanor

statement of charges charging Defendant with the same two offenses. While this

action was pending in District Court, the grand jury made a presentment and

subsequently returned an indictment for two counts of misdemeanor death by motor

vehicle. Defendant moved to dismiss the charges in Superior Court, arguing the

presentment and indictment were returned more than two years after the
                                 STATE V. STEVENS

                                 Opinion of the Court



commission of the offense in violation of the statute of limitations for misdemeanors

in N.C.G.S. § 15-1. The trial court allowed Defendant’s motion.

      A citation and misdemeanor statement of charges, as valid criminal pleadings,

toll the two-year statute of limitations for misdemeanors set out in N.C.G.S. § 15-1.

The statute of limitations remains tolled by the criminal pleadings while that action

is pending. When a presentment and indictment are returned in Superior Court

during the tolling period, N.C.G.S. § 15-1 does not bar prosecution based upon the

indictment.   We reverse the trial court’s order allowing Defendant’s motion to

dismiss.

                                 BACKGROUND

      On 24 December 2013, Defendant was charged by Citation and Magistrate’s

Order with two counts of misdemeanor death by motor vehicle arising out of an

accident on Interstate 40 in Catawba County. Defendant’s case was pending in

Catawba County District Court from this time until 21 December 2015, when a

Misdemeanor Statement of Charges was filed charging Defendant with two counts of

misdemeanor death by motor vehicle. The matter was continued in District Court on

3 March 2016 to 23 June 2016.

      Before Defendant’s charges were heard in the District Court on 23 June 2016,

the grand jury in Catawba County made a Presentment for the two counts of

misdemeanor death by motor vehicle on 7 March 2016 and subsequently returned an



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Indictment for the same charges on 21 March 2016. Defendant filed a Motion to

Dismiss in Catawba County Superior Court, arguing “the statute of limitations ha[d]

run” on the two offenses. The trial court allowed Defendant’s motion, concluding the

Defendant was charged with the two offenses by indictment “after the two[-]year

statute of limitations had run” and that the “statute of limitations bars further

prosecution on the Defendant.” The State timely appealed.

                                     ANALYSIS

      The State argues the trial court erred in concluding the 21 March 2016

indictment charging Defendant with two counts of misdemeanor death by motor

vehicle was returned after the two-year statute of limitations. More specifically, it

argues the statute of limitations from the date of offense was tolled by the

misdemeanor statement of charges at the time the indictment was issued.

Accordingly, it asserts it was not barred from issuing the indictment. We agree.

      The State does not challenge any findings of fact in the trial court’s order, so

those findings of fact are binding on appeal. State v. Biber, 365 N.C. 162, 167-68, 712

S.E.2d 874, 878 (2011). “Conclusions of law drawn by the trial court from its findings

of fact are reviewable de novo on appeal.” State v. Williams, 362 N.C. 628, 632, 669

S.E.2d 290, 294 (2008) (citation and internal quotation marks omitted). “Under a de

novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” Id. at 632-33, 669 S.E.2d at 294. Whether



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a defendant is entitled to dismissal of the charges against him or her is a conclusion

of law. Id. at 632, 669 S.E.2d at 294.

        N.C.G.S. § 15-1 sets forth the statute of limitations for misdemeanors. The

version of the statute in effect from 1943 to 2017, the relevant time period for the

events occurring         herein,    stated that “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[.]”1 N.C.G.S. § 15-1 (2015). In State

v. Curtis, 371 N.C. 355, 817 S.E.2d 187 (2018), our Supreme Court addressed the

types of criminal pleadings required to toll the two-year statute of limitations in this

version of the statute. In Curtis, the defendant was issued a citation for driving while

impaired, and a magistrate’s order was issued on that charge (among others). Id. at

356, 817 S.E.2d at 187-88. Over two years later, the defendant objected to trial on

citation and moved to dismiss the charges. Id. at 356, 817 S.E.2d at 188. “In her

motion [the] defendant argued that, because she was filing a pretrial objection . . . to

trial on citation, the State typically would be required by the statute to file a

statement of charges; however, because [N.C.G.S §] 15-1 establishes a two-year

statute of limitations for misdemeanors, [the] defendant contended that her charges

must be dismissed instead.” Id.


        1 N.C.G.S. § 15-1 has since been amended to provide that “all misdemeanors except malicious
misdemeanors, shall be charged within two years after the commission of the same, and not
afterwards.” Act of Oct. 5, 2017, ch. 212, sec. 5.3, 2017 N.C. Sess. Laws 1565, 1579 (codified at N.C.G.S.
§ 15-1 (2017)).

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      Our Supreme Court disagreed with this argument and reversed the trial

court’s order allowing the defendant’s motion to dismiss. It found that the citation,

as a valid criminal pleading, tolled the two-year statute of limitations set out in

N.C.G.S. § 15-1. The Court reasoned:

             That citation was a constitutionally and statutorily proper
             criminal pleading that conveyed jurisdiction to the district
             court to try defendant for the misdemeanor crime charged.
             In light of our decision in Underwood, the changes to
             criminal procedure and to our court system since the
             enactment of section 15-1, as well as our understanding of
             the general purpose of a criminal statute of limitations, we
             hold that the citation issued to defendant tolled the statute
             of limitations here. We cannot conclude that the General
             Assembly intended the illogical result that an otherwise
             valid criminal pleading that vests jurisdiction in the trial
             court would not also toll the statute of limitations.

Id. at 362, 817 S.E.2d at 191.

      In the case before us, a citation was issued on 24 December 2013 for two counts

of misdemeanor death by motor vehicle, and a misdemeanor statement of charges

was filed on 21 December 2015. As valid criminal pleadings under N.C.G.S. § 15A-

921 that conveyed jurisdiction to the District Court, Curtis makes clear that this

citation, and subsequently the misdemeanor statement of charges, tolled the two-year

statute of limitations under N.C.G.S. § 15-1. Yet, this case presents an additional

question not directly addressed in Curtis: whether the State may prosecute an offense

in Superior Court upon an indictment returned more than two years after the

commission of the offense but while a valid criminal pleading has tolled the statute


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of limitations. Defendant argues the indictment was a new criminal pleading that

“annulled the criminal process initially instituted in District Court” and that, because

it was returned more than two years after the commission of the offense, prosecution

based on the indictment was barred by the statute of limitations. In contrast, the

State argues “the statute of limitations was tolled by the citation and statement of

charges and [it] was not barred from later seeking an indictment” while the statute

of limitations was tolled by an active case in District Court. We agree with the State.

      To “toll” the statute of limitations means to arrest or suspend the running of

the time period in the statute of limitations. See State v. Underwood, 244 N.C. 68,

70, 92 S.E.2d 461, 463 (1956) (describing tolling as arresting the statute of

limitations). In other words, the statute of limitations ceases to run while it is tolled.

See, e.g., Chardon v. Fumero Soto, 462 U.S. 650, 652, 77 L. Ed. 2d 74, 78 n.1 (1983)

(describing tolling “to mean that, during the relevant period, the statute of limitations

ceases to run”). Moreover, the statute of limitation continues to be tolled “as long as

the action is alive . . . .” See Long v. Fink, 80 N.C. App. 482, 485, 342 S.E.2d 557, 559

(1986).

      The citation and magistrate’s order for two counts of misdemeanor death by

motor vehicle commenced an action in District Court and, for the reasons discussed

above, tolled the two-year statute of limitations in N.C.G.S. § 15-1. The misdemeanor

statement of charges continued to toll the statute of limitations. While that action



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based upon the misdemeanor statement of charges was pending, the statute of

limitations remained tolled. The statute of limitations was suspended and ceased to

run during the pendency of this action. When the presentment was made and

subsequent indictment was returned in Superior Court, the action based upon the

original citation and magistrate’s order and the later misdemeanor statement of

charges was still pending. There is nothing in the record to indicate that action had

been dismissed or abandoned by the State when the presentment and indictment

were returned. Thus, at the time the Superior Court obtained jurisdiction through

the presentment and indictment, the statute of limitations in N.C.G.S. § 15-1 was

suspended and could not bar prosecution.

      Defendant argues that the presentment and indictment initiated a new

proceeding and “annulled the criminal process” in District Court based on the

citation. Accordingly, he argues the two-year statute of limitations was not tolled

when the Superior Court obtained jurisdiction through the presentment and

indictment and barred prosecution. This argument is unavailing. The Superior

Court may acquire jurisdiction of a misdemeanor “in any action already properly

pending in the [D]istrict [C]ourt if the grand jury issues a presentment and that

presentment is the first accusation of the offense within superior court.” State v.

Gunter, 111 N.C. App. 621, 624, 433 S.E.2d. 191, 193 (1993) (emphasis added); see

also State v. Cole, ___ N.C. App. ___, 822 S.E.2d 456 (2018) (Superior Court held



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concurrent jurisdiction with the District Court over a DWI charge when the grand

jury returned a presentment and subsequent indictment). If an action in District

Court was properly pending, as it was here, the statute of limitations continued to be

tolled.

                                     CONCLUSION

          The statute of limitations in N.C.G.S. § 15-1 was tolled at the time the grand

jury returned a presentment and subsequent indictment and, therefore, did not bar

prosecution based on this indictment in Superior Court. We reverse the trial court’s

order allowing Defendant’s motion to dismiss.

          REVERSED AND REMANDED.

          Judges DIETZ and ZACHARY concur.




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