Schalow II and Dismissal for Failure to Join Offenses

On Jan. 7, 2020, the Court of Appeals decided State v. Schalow (“Schalow II”), ___ N.C. App. ___, 837 S.E.2d 593, temp. stay allowed, ___ N.C. ___, 837 S.E.2d 123 (Jan. 27, 2020), ruling that the State’s third prosecution of the defendant was vindictive and violated the rules for joinder of offenses. I previously wrote about the Court of Appeals decision in Schalow I regarding a double jeopardy issue (on which the defendant also prevailed), here. The vindictive prosecution holding of Schalow II is itself significant, and I encourage everyone to read the opinion in full for that part of the case alone. In this post, though, I wanted to focus on the joinder issue. This issue in the Schalow II opinion represents the first time that our appellate division has ever granted relief for a joinder of offenses violation. Procedural history. The defendant was initially charged with attempted first-degree murder. The indictment was flawed, however, in that it failed to allege malice, something that the judge noticed after jeopardy attached. The judge granted a mistrial over defense objection, the State obtained a new indictment, and the defendant was convicted of attempted murder. In Schalow I, the Court of Appeals found that the first indictment had properly charged attempted manslaughter, that the trial could have proceeded on that charge, and that the trial judge erred in granting the mistrial. The defendant’s conviction was vacated for the double jeopardy violation, and the N.C. Supreme Court declined review. State v. Schalow, 370 N.C. [...]