State v. Harvey, COA23-542, ___ N.C. App. ___ (Dec. 5, 2023)

In this Columbus County case, defendant appealed the denial of his motion for relief from the order imposing lifetime Satellite-Based Monitoring (SBM) for his second-degree rape conviction. The Court of Appeals reversed the denial and remanded to the trial court. 

In August of 2021, the trial court entered an order imposing lifetime SBM on defendant after he completed his sentence for second-degree rape; defendant subsequently appealed the order. In September of 2021, the General Assembly amended the SBM statutes to alter the findings required to impose SBM and to allow an offender to petition for termination or modification if they were sentenced to a term of SBM longer than 10 years before December 1, 2021. After this amendment, defendant filed a motion under Rule of Civil Procedure 60(b)(6) with the trial court to set aside the order imposing lifetime SBM, “arguing the change to the SBM law mere weeks after he was ordered to submit to a lifetime of SBM constituted an extraordinary circumstance warranting relief.” Slip Op. at 2. The trial court held a hearing on the motion, during which the judge expressed the opinion that the pending appeal removed jurisdiction from the trial court. However, in the written order denying the motion, the trial court included a conclusion of law that “Rule 60(b)(6) does not apply because extraordinary circumstances do not exist.” Id. at 4. 

Taking up the Rule 60(b) issue, the Court of Appeals found error in the conclusion that an appeal removed the trial court’s jurisdiction. The court explained that normally, an appeal removes the jurisdiction of the trial court, but there is an exception under Bell v. Martin, 43 N.C. App. 134 (1979), for Rule 60(b) motions. The Bellexception procedure allows the trial court to consider the Rule 60(b) motion and indicate on the record how it would rule:

Should the trial court indicate it would be in favor of granting the motion, the appellant would “be in position to move the appellate court to remand to the trial court for judgment on the motion.” If, on the other hand, the trial court indicated it would deny the motion, that indication “would be considered binding on that court and [the] appellant could then request appellate court review of the lower court’s action.”

Id. at 7, quoting Bell at 142 (cleaned up). Here, the trial court’s statements and order were “at odds with each other,” as it appeared the trial court did not think it had jurisdiction, but subsequently concluded that extraordinary circumstances did not exist to grant the Rule 60(b) motion. Id. at 9. This led the court to reverse and remand for a new hearing consistent with the Bell procedure.