State v. Diaz-Tomas Recognizes Broad Prosecutorial Discretion Following Dismissals With Leave

The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances. Facts. Diaz-Tomas was charged with driving while impaired on April 4, 2015. He failed to appear for court on February 24, 2016, and an order for his arrest was issued. On July 11, 2016, the State dismissed the charges with leave pursuant to G.S. 15A-932(a)(2) (permitting the prosecutor to enter a dismissal with leave for nonappearance when a defendant fails to appear at a criminal proceeding at which his attendance is required and the prosecutor believes the defendant cannot readily be found). Diaz-Tomas’s failure to appear also was reported to the North Carolina Division of Motor Vehicles (NC [...]