(a)        When a defendant lacks capacity to proceed, the court shall dismiss the charges upon the earliest of the following occurrences:

(1)        When it appears to the satisfaction of the court that the defendant will not gain capacity to proceed.

(2)        When as a result of incarceration, involuntary commitment to an inpatient facility, or other court-ordered confinement, the defendant has been substantially deprived of his liberty for a period of time equal to or in excess of the maximum term of imprisonment permissible for prior record Level VI for felonies or prior conviction Level III for misdemeanors for the most serious offense charged.

(3)        Upon the expiration of a period of five years from the date of determination of incapacity to proceed in the case of misdemeanor charges and a period of 10 years in the case of felony charges.

(b)        A dismissal entered pursuant to subdivision (2) of subsection (a) of this section shall be without leave.

(c)        A dismissal entered pursuant to subdivision (1) or (3) of subsection (a) of this section shall be issued without prejudice to the refiling of the charges. Upon the defendant becoming capable of proceeding, the prosecutor may reinstitute proceedings dismissed pursuant to subdivision (1) or (3) of subsection (a) of this section by filing written notice with the clerk, with the defendant, and with the defendant’s attorney of record.

(d)       Dismissal of criminal charges pursuant to this section shall be upon motion of the prosecutor or the defendant or upon the court’s own motion. ?(1973, c. 1286, s. 1; 2013-18, s. 5.)

Terms Used In North Carolina General Statutes 15A-1008

  • Conviction: A judgement of guilt against a criminal defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
  • Entered: means signed and filed in the office of the clerk of superior court of the county in which the document is to be entered. See North Carolina General Statutes 15A-101.1
  • Felony: A crime carrying a penalty of more than a year in prison.
  • following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
  • Misdemeanor: Usually a petty offense, a less serious crime than a felony, punishable by less than a year of confinement.