Per NCGS7A-196, there shall be no jury trials in district court. Also, a probable cause hearing should precede a murder trial. And murder trials are held in superior court after a probable cause hearing.But there is no court form to allow probable cause hearings as mandated by NCGS15A-606.
NC AOC Court Form AOC-G-106 Revised January 2012
The court form modified in January 2012 by the North Carolina Administrative Office of the Courts Director John Smith contains numerous errors listed below. This court form illustrates that the author of this document confused civil, criminal and bankruptcy law and doesn’t understand that motions to sue and appeal are entirely different and that different state statutes and procedures apply.
Working from top to bottom, here are the issues that need to be addressed and corrected:
- Document doesn’t state whether it’s a criminal or civil court form, and it is erroneously coded as a “general” court form. Most of the AOC court forms are categorized as either civil or criminal because they are two different categories of law, and different statutes apply.
- The form combines three entirely different actions on the same form (sue, appeal, file motions) as an indigent. The three different actions should not be combined on the same form because each has different statutes that apply to them.
- The form references NCGS 7A-228 which refers to having a new trial before a magistrate. This statute has nothing to do with petitioning the court for the right to be classified as an indigent.
- The form says “Affadavit” but it is not an affidavit; it is a sworn statement of indigence. Per NC Notary Law, 10B, an affidavit is a separate document.
- The Note to clerk says that if the petition to sue box is checked, then the clerk must submit the petition to a superior court judge for disposition. However, if the box is not checked, then who does this form get submitted to? The form doesn’t answer this question.
- The form says to check one of the three boxes below, but there are six boxes below to choose from.
- The first choice is a petition to sue, and it makes reference to the “above-entitled action.” But there is no above entitled action.
- The petition to appeal again refers to an “above-entitled action” when there is none. And it is to appeal a small claims action. Thus the form is combining civil actions and criminal actions, and each is different categories of law.
- The form doesn’t include options for an indigent person who is homeless, and not receiving food stamps or other aid.
- The category “Sworn to and subscribed before me” doesn’t indicate whether that box is for the clerk of court or a notary to sign. It is missing a field to contain the printed name of the clerk or notary. Additionally per NC Notary Law 10B, a notarized document must be on a separate page and a witness known to the notary must sign the document.
- The next category says “Certificate of legal services/pro bono representation.” However, this is not a certificate, it’s a sworn statement from a legal services/pro bono attorney and it requires a seal. It is missing a field to allow for the signature of the attorney.
- The order section refers to the affidavit appearing above. There is no affidavit appearing above. There are sworn statements appearing above.
- This order section allows a judge to deny the petition for indigence without a supporting memorandum citing relevant case law. This denies petitioners their 14th amendment right to due process.
- The order section doesn’t requires a judge’s name; just a printed signature. A field needs to be added. The order section also unlawfully allows a court clerk or a magistrate to deny the petition for indigence which is unlawful.
- The back side of this form is missing information. NCGS 1-110 requires a judge to decide whether a petition is frivolous or malicious. And, a petition for indigence is neither frivolous nor malicious; it’s simply an assertion of a human right.
- The second side order section again allows a judge to dismiss the petition without citing the reason for the dismissal, which violates the 14th amendment right to due process.
- The certification section is missing a field to allow for the printed name of the court clerk.
- The final line in the form states that the clerk of superior court shall serve a copy of the order of dismissal upon the prison inmate. But what if the petition is not dismissed? Then who will inform the prison inmate? And what if the petitioner is not a prison inmate?
- Finally, NCGS 1-110 allows for a person to petition for indigence pro se. But there is nowhere on the form to select this option