GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2023
SESSION LAW 2023-54
SENATE BILL 327
AN ACT to conform the general statutes to the north carolina rules of appellate procedure by updating obsolete references to "assignments of error" and "exceptions" and to make other technical changes, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 1‑186 is repealed.
SECTION 2. G.S. 1‑271 reads as rewritten:
"§ 1‑271. Who may appeal.
Any party aggrieved may appeal or
cross‑appeal in the cases prescribed in this Chapter. A The
term "party aggrieved" includes a party who cross assigns
error in challenging the grant or denial of a motion under the Rules
of Civil Procedure is a party aggrieved.Procedure."
SECTION 3. G.S. 1‑277 reads as rewritten:
"§ 1‑277. Appeal from superior or district court judge.
(a) An appeal may be taken
from every judicial order or determination of a judge of a superior or district
court, upon or involving a matter of law or legal inference, whether made in or
out of session, which that affects a substantial right claimed in
any action or proceeding; or which that in effect determines the action,
action and prevents a judgment from which an appeal might be taken;
or discontinues the action, action or grants or refuses a new
trial.
(b) Any interested party shall
have has the right of immediate appeal from an adverse ruling as to
the jurisdiction of the court over the person or property of the defendant defendant,
or such the party may preserve his exception the
party's objection for determination upon any subsequent appeal in the
cause."
SECTION 4. G.S. 1‑286 reads as rewritten:
"§ 1‑286. Justification of sureties.
The Any written
undertaking on appeal under G.S. 1‑285 must be accompanied by
the an affidavit of one of the sureties that he the
surety is worth double the amount specified therein. in the
undertaking. The respondent may except object to the
sufficiency of the sureties within ten 10 days after the notice
of appeal; and unless they or other sureties justify a surety
justifies within the ten 10 days thereafter, after
the objection, the appeal shall be regarded as if no undertaking had been
given. The justification must be upon a notice of not less than five
days."
SECTION 5. G.S. 1A‑1, Rule 46, reads as rewritten:
"Rule 46. Objections and exceptions.Objections.
(a) Rulings on admissibility of evidence. – Formal exceptions are unnecessary. An objection is deemed in the following circumstances:
(1) When there is objection
to the admission of evidence on the ground that the witness is for a specified
reason incompetent or not qualified or disqualified, it shall be is deemed
that a like objection has been made to any subsequent admission of evidence
from the witness in question. Similarly, when there is objection to the
admission of evidence involving a specified line of questioning, it shall be
is deemed that a like objection has been taken to any subsequent
admission of evidence involving the same line of questioning.
(2) If there is proper
objection to the admission of evidence and the objection is overruled, the
ruling of the court shall be is deemed excepted objected
to by the party making the objection. If an objection to the admission of
evidence is sustained or if the court for any reason excludes evidence offered
by a party, the ruling of the court shall be is deemed excepted
objected to by the party offering the evidence.
(3) No objections are
necessary with respect to questions propounded to a witness by the court or a
juror but it shall be is deemed that each such question
has been properly objected to by all parties to the action and that the
objection has been overruled and that an exception has been taken to the
ruling of the court by all parties to the action.overruled.
(b) Pretrial rulings,
interlocutory orders, trial rulings, and other orders not directed to the
admissibility of evidence. – With respect to a pretrial rulings, ruling,
an interlocutory orders, order, a trial rulings, and other
orders ruling, or another order of the court not directed to the
admissibility of evidence, formal objections and exceptions are unnecessary. In
order to preserve an exception objection to any such the
ruling or order or to the court's failure to make any such the ruling
or order, it shall be is sufficient if a party, at the time the
ruling or order is made or sought, makes known to the court the party's
objection to the action of the court or makes known the action that the party
desires the court to take and the party's grounds for its position. If a party
has no opportunity to object or except to a ruling or order at the time
it is made, the absence of an objection or exception does not thereafter
prejudice that party.
(c) Repealed by Session Laws 2001‑379, s. 6."
SECTION 6. G.S. 15‑173 reads as rewritten:
"§ 15‑173. Demurrer to the evidence.Motion
to dismiss based on the evidence.
When on the trial of any criminal
action in the superior or district court, the State has introduced its evidence
and rested its case, the defendant may move to dismiss the action, or for
judgment as in case of nonsuit. action. If the motion is allowed, judgment
shall be entered accordingly; and such the judgment shall have
has the force and effect of a verdict of "not guilty" as
to such the defendant. If the motion is refused and the defendant
does not choose to introduce evidence, the case shall be submitted to the jury
as in other cases, and the defendant may on appeal urge as ground for reversal,
reversal the trial court's denial of his the motion
without the necessity of the defendant's having taken exception objected
to such the denial.
If the defendant introduces
evidence, he the defendant thereby waives any motion for
dismissal or judgment as in case of nonsuit which he may have to dismiss
that the defendant made prior to the introduction of his the
defendant's evidence and cannot urge such the prior motion as
ground for appeal. The defendant, however, may make such the motion
at the conclusion of all the evidence in the case, irrespective of whether or
not he the defendant made a motion for dismissal or judgment
as in case of nonsuit theretofore. to dismiss beforehand. If the
motion is allowed, or shall be is sustained on appeal, it shall
has in all cases have the force and effect of a verdict of
"not guilty." If the motion is refused, the defendant may on appeal,
after the jury has rendered its verdict, urge as ground for reversal the trial
court's denial of his the motion made at the close of all the
evidence without the necessity of the defendant's having taken exception objected
to such the denial."
SECTION 7. G.S. 15A‑1446 reads as rewritten:
"§ 15A‑1446. Requisites for preserving the right to appellate review.
(a) Except as provided in
subsection (d), (d) of this section, error may shall not
be asserted upon appellate review unless the error has been brought to the
attention of the trial court by appropriate and timely objection or motion. No
particular form is required in order to preserve the right to assert the
alleged error upon appeal if the motion or objection clearly presented the
alleged error to the trial court. Formal exceptions are not required, unnecessary,
but when evidence is excluded a record must be made in the manner provided
in G.S. 1A‑1, Rule 43(c), in order to assert upon appeal error in
the exclusion of that evidence.
(b) Failure to make an
appropriate and timely motion or objection constitutes a waiver of the right to
assert the alleged error upon appeal, but the appellate court may review such
any errors affecting substantial rights in the interest of justice
if it determines it appropriate to do so.
(c) The making of post‑trial motions is not a prerequisite to the assertion of error on appeal.
(d) Errors based upon any of
the following grounds, which are asserted to have occurred, grounds may
be the subject of appellate review even though no objection, exception objection
or motion has been made in the trial division.division:
…
(3) The criminal pleading
charged acts which, that, at the time they were committed, did
not constitute a violation of criminal law.
…
(15) The defendant was not
present at any proceeding at which his the defendant's presence
was required.
…."
SECTION 8. G.S. 15A‑2000 reads as rewritten:
"§ 15A‑2000. Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.
(a) Separate Proceedings on Issue of Penalty. –
(1) Except as provided in
G.S. 15A‑2004, upon conviction or adjudication of guilt of a
defendant of a capital felony in which the State has given notice of its intent
to seek the death penalty, the court shall conduct a separate sentencing
proceeding to determine whether the defendant should be sentenced to death or
life imprisonment. A capital felony is one which that may be
punishable by death.
…
(3) In the proceeding there shall
not be any is no requirement to resubmit evidence presented during
the guilt determination phase of the case, unless a new jury is impaneled, but
all such this evidence is competent for the jury's consideration
in passing on punishment. Evidence may be presented as to any matter that the
court deems relevant to sentence, sentence and may include
matters relating to any of the aggravating or mitigating circumstances
enumerated in subsections (e) and (f) of this section. Any evidence which that
the court deems to have probative value may be received.
(4) The State and the
defendant or his the defendant's counsel shall be permitted to
present argument for or against sentence of death. The defendant or defendant's
counsel shall have has the right to the last argument.
(b) Sentence Recommendation
by the Jury. – Instructions determined by the trial judge to be warranted by
the evidence shall be given by the court in its charge to the jury prior to its
deliberation in determining sentence. The court shall give appropriate
instructions in those cases in which evidence of the defendant's intellectual
disability requires the consideration by the jury of the provisions of G.S. 15A‑2005.
In all cases in which the death penalty may be authorized, the judge shall
include in the judge's instructions to the jury that it must consider any
aggravating circumstance or circumstances or mitigating circumstance or
circumstances from the lists provided in subsections (e) and (f) of this
section which may be that are supported by the evidence, evidence
and shall furnish to the jury a written list of issues relating to such the
aggravating or mitigating circumstance or circumstances.
After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon all of the following matters:
(1) Whether any sufficient
aggravating circumstance or circumstances as enumerated in subsection (e) of
this section exist.exists.
(2) Whether any sufficient
mitigating circumstance or circumstances as enumerated in subsection (f) of
this section, which that outweigh the aggravating circumstance or
circumstances found, exist.exists.
(3) Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State's prison for life.
The sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.
If the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment. The judge shall in no instance impose the death penalty when the jury cannot agree unanimously to its sentence recommendation.
(c) Findings in Support of Sentence of Death. – When the jury recommends a sentence of death, the foreman of the jury shall sign a writing on behalf of the jury that shows all of the following:
(1) The statutory aggravating
circumstance or circumstances which that the jury finds beyond a
reasonable doubt.
…
(d) Review of Judgment and Sentence. –
(1) The judgment of
conviction and sentence of death shall be is subject to automatic
review by the Supreme Court of North Carolina pursuant to procedures
established by the Rules of Appellate Procedure. In its review, the Supreme
Court shall consider the punishment imposed as well as any errors assigned arguments
raised on appeal.
(2) The sentence of death
shall be overturned and a sentence of life imprisonment imposed in lieu thereof
by the Supreme Court upon a finding that the record does not support the jury's
findings of any aggravating circumstance or circumstances upon which the
sentencing court based its sentence of death, or upon a finding that the
sentence of death was imposed under the influence of passion, prejudice, or any
other arbitrary factor, or upon a finding that the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. The Supreme Court may suspend
consideration of death penalty cases until such time as the court determines
it is prepared to make the comparisons required under this section.
…
(e) Aggravating
Circumstances. – Aggravating circumstances which that may be
considered are limited to the following:
…
(8) The capital felony was
committed against a law‑enforcement officer, employee of the Department
of Adult Correction, an employee of the Division of Juvenile Justice of the
Department of Public Safety, jailer, fireman, judge or justice, former judge or
justice, prosecutor or former prosecutor, juror or former juror, or witness or
former witness against the defendant, while engaged in the performance of his
official duties or because of the exercise of his official duty.
(9) The capital felony was especially heinous, atrocious, or cruel.
(10) The defendant knowingly
created a great risk of death to more than one person by means of a weapon or
device which that would normally be hazardous to the lives of
more than one person.
(11) The murder for which the
defendant stands convicted was part of a course of conduct in which the
defendant engaged and which that included the commission by the
defendant of other crimes of violence against another person or persons.
(f) Mitigating
Circumstances. – Mitigating circumstances which that may be
considered include, but are not limited to, the following:
…
(9) Any other circumstance
arising from the evidence which that the jury deems to have
mitigating value."
SECTION 9. G.S. 62‑90 reads as rewritten:
"§ 62‑90. Right of appeal; filing of exceptions.appeal.
(a) Any party to a
proceeding before the Commission may appeal from any final order or decision of
the Commission within 30 days after the entry of such the final
order or decision, or within such an additional time thereafter
as may be fixed by the Commission, not to exceed 30 additional days, and by
order made within 30 days, if the party aggrieved by such the decision
or order shall file files with the Commission a notice of
appeal and exceptions which shall set that sets forth
specifically the ground or grounds on which the aggrieved party considers said
decisions the decision or order to be unlawful, unjust, unreasonable
or unwarranted, and including unreasonable, or unwarranted and that
includes the errors alleged to have been committed by the Commission.
All other parties may give a notice
of cross appeal and set out exceptions which shall set cross‑appeal
that sets forth specifically the grounds on which the said party
considers said the decision or order to be unlawful, unjust, unreasonable
or unwarranted, and including unreasonable, or unwarranted and that
includes the errors alleged to have been committed by the Commission. Such
The notice of cross appeal and exceptions cross‑appeal
shall be filed with the Commission within 20 days after the first notice of
appeal and exceptions has been filed, or within such an
additional time thereafter as may be fixed by the Commission, not to
exceed 20 additional days by order made within 20 days of the first filed
notice of appeal and exceptions.appeal.
(b) Any party may appeal
from all or any portion of any final order or decision of the Commission in the
manner herein provided. provided in this section. Copy of the
notice of appeal shall be mailed by the appealing party party, at
the time of filing with the Commission, to each party to the proceeding to the
addresses as they appear in the files of the Commission in the proceeding. The
failure of any party, other than the Commission, to be served with or to
receive a copy of the notice of appeal shall does not affect the
validity or regularity of the appeal.
(c) The Commission may on
motion of any party to the proceeding or on its own motion set the exceptions
objections to the final order upon which such the appeal
is based for further hearing before the Commission.
(d) The appeal shall lie lies
to the appellate division of the General Court of Justice as provided in
G.S. 7A‑29. The procedure for the appeal shall be as is provided
by the rules of appellate procedure.
(e), (f) Repealed by Session Laws 1975, c. 391, s. 12.
(g) Repealed by Session Laws 1983, c. 526, s. 5."
SECTION 10. G.S. 62‑94 reads as rewritten:
"§ 62‑94. Record on appeal; extent of review.
(a) On appeal the court
shall review the record and the exceptions and assignments of error issues
raised in accordance with the rules of appellate procedure, and any alleged
irregularities in procedures before the Commission, not shown in the record,
shall be considered under the rules of appellate procedure.
(b) So far as necessary to
the decision and where presented, the court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and determine the
meaning and applicability of the terms of any Commission action. The court may
affirm or reverse the decision of the Commission, declare the same decision
null and void, or remand the case for further proceedings; or it may
reverse or modify the decision if the substantial rights of the appellants have
been prejudiced because the Commission's findings, inferences, conclusions conclusions,
or decisions are:are any of the following:
(1) In violation of
constitutional provisions, orprovisions.
(2) In excess of statutory
authority or jurisdiction of the Commission, orCommission.
(3) Made upon unlawful proceedings,
orproceedings.
(4) Affected by other errors
of law, orlaw.
(5) Unsupported by competent,
material material, and substantial evidence in view of the entire
record as submitted, orsubmitted.
(6) Arbitrary or capricious.
(c) In making the foregoing
these determinations, the court shall review the whole record or such
the portions thereof as may be of it that are cited by
any party party, and due account shall be taken of the rule of
prejudicial error. The appellant shall not be permitted to rely upon any
grounds for relief on appeal which that were not set forth
specifically in his the appellant's notice of appeal filed with
the Commission.
(d) The court shall also compel action of the Commission unlawfully withheld or unlawfully or unreasonably delayed.
(e) Upon any appeal, the
rates fixed or any rule, regulation, finding, determination, or order
made by the Commission under the provisions of this Chapter shall be is
prima facie just and reasonable."
SECTION 11. G.S. 105‑345 reads as rewritten:
"§ 105‑345. Right of appeal; filing of exceptions.appeal.
(a) No party to a proceeding
before the Property Tax Commission may appeal from any final order or decision
of the Commission unless within 30 days after the entry of such the final
order or decision the party aggrieved by such the decision or
order shall file files with the Commission a notice of
appeal and exceptions which shall set that sets forth
specifically the ground or grounds on which the aggrieved party considers said
the decision or order to be unlawful, unjust, unreasonable or
unwarranted, and including unreasonable, or unwarranted and that includes
the errors alleged to have been committed by the Commission.
(b) Any party may appeal
from all or any portion of any final order or decision of the Commission in the
manner herein provided. provided in this section. Copy of the
notice of appeal shall be mailed by the appealing party party, at
the time of filing with the Commission, to each party to the proceeding to the
addresses as they appear in the files of the Commission in the proceeding. The
failure of any party, other than the Commission, to be served with or to
receive a copy of the notice of appeal shall does not affect the
validity or regularity of the appeal.
(c) The Commission may on
motion of any party to the proceeding or on its own motion set the exceptions
objections to the final order upon which such the appeal
is based for further hearing before the Commission.
(d) The appeal shall lie lies
to the Court of Appeals as provided in G.S. 7A‑29. The procedure
for the appeal shall be as is provided by the rules of appellate
procedure.
(e) The Court of Appeals
shall hear and determine all matters arising on such the appeal,
as in this Article provided, and may in the exercise of its discretion assign
the hearing of said the appeal to any panel of the Court of
Appeals."
SECTION 12. G.S. 105‑345.2 reads as rewritten:
"§ 105‑345.2. Record on appeal; extent of review.
(a) On appeal the court
shall review the record and the exceptions and assignments of error issues
raised in accordance with the rules of appellate procedure, and any alleged
irregularities in procedures before the Property Tax Commission, not shown in
the record, shall be considered under the rules of appellate procedure.
(b) So far as necessary to
the decision and where presented, the court shall decide all relevant questions
of law, interpret constitutional and statutory provisions, and determine the
meaning and applicability of the terms of any Commission action. The court may
affirm or reverse the decision of the Commission, declare the same decision
null and void, or remand the case for further proceedings; or it may
reverse or modify the decision if the substantial rights of the appellants have
been prejudiced because the Commission's findings, inferences, conclusions conclusions,
or decisions are:are any of the following:
(1) In violation of
constitutional provisions; orprovisions.
(2) In excess of statutory
authority or jurisdiction of the Commission; orCommission.
(3) Made upon unlawful proceedings;
orproceedings.
(4) Affected by other errors
of law; orlaw.
(5) Unsupported by competent,
material material, and substantial evidence in view of the entire
record as submitted; orsubmitted.
(6) Arbitrary or capricious.
(c) In making the
foregoing these determinations, the court shall review the whole
record or such the portions thereof as may be of it
that are cited by any party party, and due account shall be
taken of the rule of prejudicial error. The appellant shall not be permitted to
rely upon any grounds for relief on appeal which that were not
set forth specifically in his the appellant's notice of appeal
filed with the Commission."
SECTION 13. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 15th day of June, 2023.
s/ Phil Berger
President Pro Tempore of the Senate
s/ Jeff Zenger
Presiding Officer of the House of Representatives
s/ Roy Cooper
Governor
Approved 3:40 p.m. this 23rd day of June, 2023