Relief from a Criminal Conviction (2023 Edition)

Three different sets of rules apply to termination of satellite-based monitoring based on the date the court ordered monitoring, set forth in Table 29. These dates come from legislation enacted by the General Assembly in 2021—S.L. 2021-138 (S 300), as amended by S.L. 2021-182 (S 183)—and in 2023—S.L. 2023-14 sec. 8.1 (S 20).

The changes in 2021 followed the decision by the U.S. Supreme Court in Grady v. North Carolina, 575 U.S. 306 (2015), finding that satellite-based monitoring is a search under the Fourth Amendment and remanding for a determination whether the search was reasonable. Several North Carolina appellate decisions thereafter found satellite-based monitoring requirements to be unreasonable searches in violation of the Fourth Amendment. The 2021 changes set a maximum period of monitoring of ten years, among other things. See Jamie Markham, Revisions to North Carolina’s Satellite-Based Monitoring Law, N.C. Crim. L., UNC Sch. of Gov’t Blog (Oct. 11, 2021) (blog post covers the initial changes the General Assembly made in 2021, but not later amendments in 2021, which are reflected below and in G.S. 14-208.46). In 2023, the General Assembly significantly lengthened the maximum period of monitoring. The constitutionality of the 2023 changes has yet to be considered by the appellate courts. See Phil Dixon, 2023 Satellite-Based Monitoring Revisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jun. 14, 2023).

One set of rules, enacted in 2021, concerns court orders for satellite-based monitoring imposed before December 1, 2021. See G.S. 14-208.46. This group includes people for which lifetime monitoring was mandatory—namely, a person classified as a recidivist, convicted of an aggravated offense, determined to be a sexually violent predator, or convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult. This group also includes a person convicted of an offense involving physical, mental, or sexual abuse of a minor and ordered to submit to monitoring for more than ten years. If a person has been on satellite-based monitoring for more than ten years, the court must terminate monitoring. If a person has not yet been on monitoring for ten years, the court must set the monitoring requirement at ten years.

A second set of rules, also enacted in 2021, concerns court orders for satellite-based monitoring imposed on or after December 1, 2021, and before October 1, 2023. See S.L. 2021-138, as amended by S.L. 2021-182, revising G.S. 14-208.40A. This group includes a person classified as a reoffender (two or more felony reportable convictions from different court dates), convicted of an aggravated offense, determined to be a sexually violent predator, or convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult. If the court finds that the person requires the highest level of supervision and monitoring, the period of monitoring is ten years. See G.S. 14-208.40A. This group also includes people convicted of an offense involving physical, mental, or sexual abuse of a minor. If the court finds that the person requires the highest level of supervision and monitoring, the period of monitoring is up to ten years. Id.[1] After five years, a person in either group may petition the court to terminate or reduce the period of monitoring. G.S. 14-208.43. If the court denies the petition, the person may file a new petition after two years. Id.

A third set of rules, enacted in 2023, concerns satellite-based monitoring orders imposed on or after October 1, 2023. See G.S. 14-208.40A, as currently worded. This third set of rules differs from the second in the amount of time that the court may order monitoring and in the treatment of “reoffenders.” The process for terminating or modifying the length of monitoring is the same. This third group includes a person classified as a reoffender involving certain offenses (identified in G.S. 14-208.40A(c)(4)), convicted of an aggravated offense, determined to be a sexually violent predator, or convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult. If the court finds that the person requires the highest level of supervision and monitoring, the period of monitoring is for life. See G.S. 14-208.40A. This group also includes people convicted of an offense involving physical, mental, or sexual abuse of a minor. If the court finds that the person requires the highest level of supervision and monitoring, the period of monitoring is up to fifty years. Id. After five years, a person in either group may petition the court to terminate or reduce the period of monitoring and, if the court denies the petition, file a new petition after two years. See G.S. 14-208.43. The constitutionality of the most recent changes to the law has yet to be considered by the appellate courts. For a further discussion, see Phil Dixon, 2023 Satellite-Based Monitoring Revisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jun. 14, 2023).

Table 29. Termination of Lifetime Satellite-Based Monitoring Obligations by Post-Release Supervision Commission

[1] The codifier of statutes apparently is of the view that the ten-year time limit for offenses involving abuse of a minor applies to monitoring orders imposed on or after December 1, 2021, and before January 1, 2023, but not monitoring orders imposed from January 1, 2023, to October 1, 2023. The reason appears to be that S.L. 2021-138, as amended by S.L. 2021-182, revised G.S. 14-208.40A to set a ten-year time limit, but another session law, S.L. 2021-180, sec. 19C.9(jj) (S 180), revised G.S. 14-208.40A effective January 1, 2023, and did not include a time limit. The codifier of statutes apparently determined that the time limit in S.L. 2021-138, as amended by 2021-182, and S.L. 2021-180 without a time limit should both be given effect. Whether or not the codifier’s interpretation is correct, the General Assembly modified the time limits, as discussed in the text, beginning with orders imposed on or after October 1, 2023.