Indigent Defense Education

Appointment of Counsel for Class 3 Misdemeanors (Authorized Punishments)

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What punishments are permissible for a Class 3 misdemeanor?


If a defendant has three or fewer prior convictions, the court may impose a fine or, in the rare instance when a statute specifically authorizes it, a greater punishment. G.S. 15A-1340.23(d). In fine-only cases, the usual structured sentencing rules apply, capping the fine at $200 unless another statute provides for a greater fine. G.S. 15A-1340.23(b). Among the most commonly-charged Class 3 misdemeanors, only one statute (littering) allows a greater punishment.

If a defendant has four or more prior convictions, the court may impose the usual punishments under structured sentencing, including an active or suspended sentence of imprisonment to the extent permissible. The remainder of the discussion in this part concerns Class 3 misdemeanor cases when the defendant has three or fewer prior convictions.

Is a sentence of active or suspended sentence of imprisonment permissible?

No. If the defendant has three or fewer prior convictions (and no statute permits otherwise), the court may not impose an active or suspended sentence of imprisonment for a Class 3 misdemeanor.

Are costs permissible?

The imposition of costs on conviction (pursuant to G.S. 7A-304) remains permissible because it is not a criminal punishment; costs are therefore not subject to the punishment limitation for Class 3 misdemeanors.


Are attorneys’ fees permissible?

For the same reasons as in the preceding answer, the imposition of attorneys’ fees on conviction (pursuant to G.S. 7A-455) remains permissible because it is not a criminal punishment. The issue will still arise in cases in which a defendant is convicted of a Class 3 misdemeanor because a defendant will sometimes be charged with a greater offense, for which the right to counsel applies, and be convicted of a Class 3 misdemeanor. Although convicted of an offense for which the punishment is limited to a fine, the defendant is entitled to counsel based on the original charge, and the State is entitled to recoup attorneys’ fees following conviction. See G.S. 7A-455(c) (authorizing recoupment if the defendant is convicted). Imposition of the attorney appointment fee (under G.S. 7A-455.1) is permissible for the same reason. See also State v. Webb, 358 N.C. 92 (2004) (finding that appointment fee is cost).

Is restitution permissible?

Restitution is a criminal punishment but, if authorized for a specific offense, is permissible for a Class 3 misdemeanor under the exception in new G.S. 15A-1340.23(d). For example, if a defendant is convicted of a worthless check offense in violation of G.S. 14-107, whether a Class 3 misdemeanor or a higher class of offense, the court may require the defendant to make restitution to the victim as provided in G.S. 14-107(e).

For offenses for which restitution is not specifically authorized, the authority to order restitution is not as clear. G.S. 15A-1340.34 governs restitution generally. Subsection (b) states that the sentencing court must order restitution if the offense is subject to the Crime Victims’ Rights Act (G.S. 15A-830 through G.S. 15A-841). No Class 3 misdemeanors are subject to the Crime Victims’ Rights Act. Subsection (c) of G.S. 15A-1340.34 states that for other offenses the court may order restitution “in addition to any other penalty authorized by law.” This general provision may or may not be sufficient to authorize restitution because new G.S. 15A-1340.23(d) allows a punishment other than a fine only if provided for a “specific offense.”

Assuming restitution is permissible, a restitution order may be difficult to enforce. Because a suspended sentence is impermissible, restitution cannot be made a condition of probation. Because no Class 3 misdemeanors are subject to the Crime Victims’ Rights Act, an order for restitution cannot be enforced as a civil judgment. See G.S. 15A-1340.38(a) (authorizing civil judgment for restitution in excess of $250 for offenses subject to Crime Victims’ Rights Act). Whether an order of restitution may be enforced by contempt is unclear. 

Is a sentence of “time served” permissible?

A sentence of time served would appear to be permissible for a Class 3 misdemeanor because such a sentence imposes no additional punishment than the time already served before conviction; for an in-custody defendant, the sentence actually terminates confinement. Further, to accommodate this practice, North Carolina’s structured sentencing statutes contain an exception for time served for misdemeanors when an active punishment is not otherwise authorized, allowing imposition of a term of imprisonment “equal to or less than the total amount of time the offender has already spent committed to or in confinement . . . as a result of the charge that culminated in the sentence.” G.S. 15A-1340.20(c1).

Whether the General Assembly intended to permit a sentence of time served, however, may depend on whether such a sentence is constitutionally permissible without affording counsel to the defendant. The General Assembly adopted the new punishment scheme for Class 3 misdemeanors to reduce counsel costs. If counsel is required when the court imposes a sentence of time served, the General Assembly may not have intended to allow such a sentence.

Some decisions have found that a sentence of time served does not trigger the right to counsel. The cases have arisen in the context of whether a court may enhance a sentence for a later offense based on an earlier misdemeanor conviction in which an unrepresented defendant received a sentence of time served. The decisions found that the earlier conviction did not violate the defendant’s right to counsel and could be used for enhancement purposes. The courts reasoned that a sentence of time served does not impose a term of imprisonment as a result of an uncounseled conviction; rather, the period of incarceration served by the defendant resulted from the defendant’s inability to post bond before trial. See Glaze v. South Carolina, 621 S.E.2d 655 (S.C. 2005); Nicholson v. State, 761 So. 2d 924 (Miss. Ct. App. 2000); see also State v. Dunning, 995 So. 2d 1162 (Fl. Ct. App. 2008) (following Glaze) [subsequent decisions interpreting Florida’s state constitution may have limited the holding in Dunning].

Some decisions have reached a contrary conclusion, refusing to enhance a later offense based on a prior uncounseled conviction imposing a sentence of time served. Those decisions refuse to distinguish between a sentence of imprisonment satisfied by credit for time already served and a sentence of imprisonment to be served following conviction. See State v. O’Neill, 746 N.E.2d 654 (Ohio Ct. App. 2000); United States v. Cook, 36 F.3d 1098 (6th Cir. 1994) (unpublished).

A judge may avoid these constitutional issues by inquiring whether a defendant is willing to proceed without counsel and, if so, obtaining a waiver of counsel. A judge also could impose a nominal fine and enter judgment without using the term “time served.” Under either approach, a judge should advise an unrepresented defendant who is in custody that he or she is entitled to counsel if he or she does not enter a plea and remains in custody. 

Is a deferred prosecution permissible?

Yes. Although a defendant who receives a deferred prosecution may be placed on probation, with conditions, the arrangement is not part of a judgment and sentence, which are deferred. If the defendant violates the terms of the arrangement, the State may resume the prosecution. See G.S. 15A-1341(a1). If the defendant is convicted, the court then would have to sentence the defendant in conformity with the fine-only restrictions in new G.S. 15A-1340.23(d).

Is the conditional discharge procedure in G.S. 90-96 permissible?

Yes, for reasons similar to the reasons discussed in the preceding question about deferred prosecutions. A defendant who receives a conditional discharge under G.S. 90-96—for example, for a Class 3 misdemeanor possession of marijuana offense—is placed on probation without entry of judgment or sentence. If the defendant violates the terms of the arrangement, the court then would have to impose a sentence consistent with the fine-only provisions in new G.S. 15A-1340.23(d).

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