Proper Notice and Hearing on Judgments for Attorney Fees

Two recent cases from the Court of Appeals highlight a recurring issue related to money in criminal cases: the requirement to give a defendant notice and an opportunity to be heard before entry of a judgment for attorney fees. In State v. Patterson, ___ N.C. App. ___ (Feb. 4, 2020), the defendant was convicted of a felony in superior court in May 2018. At the time, the defendant’s lawyer didn’t have the total hours and corresponding fees tabulated, so it wasn’t until late June—about a month and a half later—that the trial judge entered a civil judgment against the defendant for $2,250 for attorney fees. There was no colloquy with the defendant about that. The Court of Appeals vacated the civil judgment. As the court said in State v. Friend, 257 N.C. App. 516 (2018)—and in over two dozen subsequent appellate cases in the past two years—defendants are entitled to notice and an opportunity to be heard regarding the amount of an attorney fee award. Before entering a judgment for an award, the court should ask defendants—personally, not through counsel—whether they wish to be heard on the issue. Absent such a colloquy (or some other record evidence demonstrating that the defendant received notice), the fee award will, if appealed, be vacated and remanded for reconsideration of the issue. And that is what happened in Patterson. The same issue came up in another case issued yesterday, unpublished State v. Stacy. The trial court never personally addressed the defendant about attorney fees, and [...]