Criminal Law and Procedure; Motion for Appropriate Relief

Subject:

Criminal Law and Procedure; G.S. 15A-1411; Motion for Appropriate Relief

Requested By:

Honorable Robert Earl Williford District Court Judge

Question:

Can the court grant a defendant who is qualified a limited driving privilege on defendant’s motion for appropriate relief under G.S. 15A-1411 et seq. filed more than ten days after the date of trial, at which trial the defendant was convicted of driving under the influence?

Conclusion:

No, except where the defendant qualifies under the provisions of G.S. 15A-1415(b).

G.S. 15A-1415(b) reads:

"(b) The following are the only grounds which the defendant may assert by a motion for appropriate relief more than 10 days after entry of judgment:

(1)

The acts charged in the criminal pleading did not at the time they were committed constitute a violation of criminal law.

(2)

The trial court lacked jurisdiction over the person of the defendant or over the subject matter.

(3)

The conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.

(4)

The defendant was convicted or sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina.

(5)

The conduct for which the defendant was prosecuted was protected by the Constitution of the United States or the Constitution of North Carolina.

(6)

Evidence is available which was unknown or unavailable to the defendant at the time of the trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.

(7)

There has been a significant change in law, with substantive or procedural, applied in the proceedings leading to the defendant’s conviction of sentence, and retroactive application of the changed legal standard is required.

(8)

The sentence imposed was unauthorized at the time imposed, exceeded the maximum

authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.

(9) The defendant is in confinement and is entitled to release because his sentence has been fully served." (Emphasis added)

It should be noted that the 10 days run from the date of entry of judgment and is not dependent on the length of term.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General