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A few weeks ago, I wrote about the circumstances in which one judge may pick up case-related duties that another judge is unable to complete. Yesterday, the court of appeals decided a case in this area, determining in State v. Fearns, COA23-650, ___ N.C. App. ___ (2025), that a judge lacked authority to enter an order denying a defendant’s motion to dismiss when the hearing on that motion was held by another judge. This post will discuss Fearns.
Facts. The defendant in Fearns was charged in 2019 with embezzling funds more than ten years earlier from the law firm where she then worked. The alleged criminal activity had been reported in 2008, but for various reasons there was a significant delay in the filing of charges. Eight months after she was indicted, the defendant moved to dismiss the charges for failure to timely prosecute. The motion was heard on January 24, 2020 before a superior court judge (Judge A), who orally denied the motion, instructing the State to draft a written order. Judge A stated on the record that, while the defendant was prejudiced by the delay, he was denying the motion because there was no indication that the delay was deliberate or unnecessary. No written order had been filed by the time Judge A retired on October 1, 2020.
On September 13, 2021, Judge B filed an order denying the defendant’s motion to dismiss, with a notation that the order was being issued by Judge A and signed by Judge B pursuant to Rule 63 of the Rules of Civil Procedure. The order included findings of fact and conclusions of law, including a conclusion that the defendant had not established that she was prejudiced by the delay, a conclusion that differed from Judge A’s oral pronouncement.
The defendant subsequently was convicted at trial and appealed. On appeal, she argued that Judge B lacked authority to enter the order denying her motion to dismiss without holding a hearing of his own. The court of appeals agreed.
Court of Appeals’ analysis. The Court first noted that Rule 63 of the Rules of Civil Procedure did not apply in criminal cases. Moreover, even if the rule did apply, it would not have authorized the entry of an order including detailed findings of fact and conclusions of law that were not rendered by Judge A along with a conclusion that directly contradicted Judge A’s oral rendering.
Indeed, the Court said it could find no statutory authority that authorized the subsequent judge’s order, noting that G.S. 15A-1224(b), which allows for substitution of a judge during a criminal trial, is inapplicable to rulings on a motion to dismiss. The court found the principles of State v. Bartlett, 368 N.C. 309 (2015) (holding that a judge who did not conduct a suppression hearing lacked the authority to subsequently enter a written order resolving an evidentiary conflict), applicable to Judge B’s ruling on the motion to dismiss. See Bartlett, 368 N.C. at 313 (finding that only the trial judge who heard the evidence may find the facts because the presiding judge “‘sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position . . . is given the responsibility of discovering the truth.’” Id. (quoting State v. Smith, 278 N.C. 36 (1971)).
A concurrence. Judge Stading concurred “particularly since [Judge B’s] written dismissal order contained a conclusion of law directly contradicting the original trial judge’s orally rendered conclusion.” Slip op. at 1 (Stading, J., concurring). He wrote separately to urge “a tempered application” of Bartlett, as that court reached its conclusions after analyzing the procedures for deciding a motion to suppress prescribed by G.S. 15A-974 and -977. Judge Stading noted that G.S. 15A-954(a)(4), the statute under which defendant filed her motion to dismiss, does not contain similarly specific requirements about findings of fact and conclusions of law.
The upshot. While Fearns does not break a lot of new ground, (indeed the State conceded on appeal that if the defendant had preserved the issue, Judge B’s ruling was a nullity), the majority’s opinion does support the application of Bartlett to contexts beyond suppression motions. It also doubles down on the notion that G.S. 15A-1224 is limited only to trials, indicating that the statute cannot be read to authorize a substitute judge to issue an order ruling on any sort of pre-trial motion based on a hearing conducted by another judge. The upshot is that when the judge who conducted a motions hearing in a criminal case is not available to enter a necessary written order, the trial court likely must conduct a new hearing. The concurrence leaves open the possibility that a later judge might appropriately memorialize an earlier judge’s ruling on a motion to dismiss; nevertheless, because the majority does not expressly leave that door ajar, a cautious jurist will opt for a do-over.
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