J. Rodrigo Pocasangre

J. Rodrigo Pocasangre

Rodrigo has experience in both civil and criminal matters. He earned his law degree from the Indiana University Maurer School of Law in Bloomington. While in law school, he earned Dean’s Honors Distinctions on multiple occasions.

The answer to this question is maybe. We have all heard of cases being thrown out because of an error or mistake in the ticket or pleading. If the officer made a small mistake in the spelling of your name (like Shawn vs. Sean) or if he wrote that your vehicle was a 2007 model when it is a 2008 model, your case will probably not be dismissed on those grounds. Yet, there are other mistakes that may seem trivial, but could result in dismissal.

A critical mistake by an officer or a magistrate that may result in dismissal is if the pleading fails to include each essential element of the crime charged. For example, an essential element of the crime of larceny is that the stolen property must belong to someone else. But that “someone else” must be able to legally own the property in the first place. So, believe it or not, North Carolina courts have consistently held that failure to include at least the “inc.” after a corporation’s name results in a fatal pleading and dismissed the charge if the objection is raised at the appropriate time. In State v. Thompson, for instance, the warrant was fatally defective because it alleged that “Belk’s Department Store” owned the property, but failed to allege that Belk’s is a corporation or a legal entity capable of owning property.

A personal favorite of mine is the case of a Sean Kelly. Mr. Kelly, who was undoubtedly speeding 95 mph in a 60 mph zone on a mountain road near Asheville, was charged by a state trooper with reckless driving. In the citation, the trooper alleged that on 9 January 2010, Mr. Kelly “unlawfully and willfully carelessly and heedlessly in willful and wanton disregard of the rights and safety of others.” You may have noticed that as colorful as the trooper was in describing Mr. Kelly’s conduct, he forgot to include a pretty important detail: that Mr. Kelly was driving a car! The Court of Appeals agreed with Mr. Kelly and vacated his conviction because without that essential element, the trial court had no jurisdiction to enter judgment for that charge.

The purpose of a pleading is to inform a defendant of what precisely he’s being charged with. This is not a nicety extended to you by a friendly police officer; it is a constitutional requirement. Cases like the ones above show why it’s always a good idea to consult with an attorney.

Contact Info

A.G. Linett & Associates — PA ATTORNEYS AT LAW
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Greensboro, NC 27407

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