Retrospective laws, punishing acts committed before the existence of such laws and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, and therefore no ex post facto law shall be enacted. No law taxing retrospectively sales, purchases, or other acts previously done shall be enacted.
History Note. - The provisions of this section are similar to those of Art. I, § 32, Const. 1868.
CASE NOTES
Editor's Note. - Some of the cases cited below were decided under former Art. I, § 32, Const. 1868.
"Ex Post Facto Laws" Defined. - An ex post facto law is one which either makes that a crime which was not a crime when the offense was committed or which imposes a heavier sentence than that which was prescribed by law at that time. State v. Broadway, 157 N.C. 598, 72 S.E. 987 (1911).
Whenever a retrospective statute applies to crimes and penalties, it is an ex post facto law. State v. Bond, 49 N.C. 9 (1856); State v. Bell, 61 N.C. 76 (1867).
Section Applies Only to Criminal Statutes. - Constitutional prohibitions of ex post facto legislation apply only to criminal proceedings. Stanback v. Citizens Nat'l Bank, 197 N.C. 292, 148 S.E. 313 (1929); North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).
And to Legislative, Not Judicial Action. - There is no violation of the ex post facto clause in the Constitution of this State when a judicial decision is applied retroactively, because the clause applies to legislative and not judicial action. A party has no vested right in a decision of this State's Supreme Court. State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980); State v. Funderburk, 56 N.C. App. 119, 286 S.E.2d 884 (1982).
Retroactive application of the Robbins decision to the inmate's parole eligibility did not violate the constitutional prohibition against ex post facto laws because the Fair Sentencing Act, G.S. 15A-1340.1 to 1340.7 had undergone no substantive change subsequent to the commission of the inmate's crimes. Price v. Beck, 153 N.C. App. 763, 571 S.E.2d 247, cert. denied, 356 N.C. 615, 575 S.E.2d 26 (2002).
And Is Inapplicable to Attorney Disciplinary Proceedings. - The doctrine of ex post facto laws does not apply to attorney disciplinary proceedings. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1982).
Judicial Abrogation of Common-Law Criminal Principles. - Whereas this decision holds that the year and a day rule as formerly utilized in murder prosecutions is no longer part of the common law of the state, to apply this decision abrogating the year and a day rule to permit defendant to be convicted of murder in the present case would, at the very least, permit his conviction upon less evidence than would have been required to convict him of that crime at the time the victim died and would, for that reason, violate the principles preventing the application of ex post facto laws. The judgment against defendant for second degree murder was vacated where defendant did not die within a year and a day of the acts in question; however, under the circumstances of this case, a conviction for involuntary manslaughter was appropriate. State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991).
An increase in a criminal penalty by legislative action may not constitutionally be applied retroactively. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).
Where the punishment at the time of the offense was death or life imprisonment in the discretion of the jury, a change by the legislature to death alone would be ex post facto as to offenses committed prior to the change. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).
Any legislation which increases the punishment for a crime between the time the offense was committed and the time a defendant is punished therefor is considered an invalid ex post facto law as applied to that defendant. State v. Wright, 302 N.C. 122, 273 S.E.2d 699 (1981).
Nor May An Increase by Judicial Action. - While the letter of the ex post facto clause is addressed to legislative action, the constitutional ban against the retroactive increase of punishment for a crime applies as well against judicial action having the same effect. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).
The habitual misdemeanor assault statute does not violate the prohibition on ex post facto laws in either the United States Constitution, Art. I, § 10, cl. 1, or the North Carolina Constitution, Art. I, § 16, by increasing the penalty for these crimes after the offenses were committed; the statute does not impose punishment for previous crimes, but rather imposes an enhanced punishment for behavior occurring after the enactment of the statute, because of the repetitive nature of such behavior. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000).
Timing of Acts and Result of Murder. - Depriving defendant of the defense of the "year and a day" rule based on the Supreme Court's prospective abrogation of that rule in State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991) violated the prohibition against ex post facto laws where the murderous acts occurred prior to the abrogation and the victim's death occurred after the abrogation but more than a year and a day after the murderous acts. State v. Robinson, 335 N.C. 146, 436 S.E.2d 125 (1993).
Application of felony murder rule in automobile accident did not violate prohibition against ex post facto laws. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).
A retrospective statute is not necessarily void. Tabor v. Ward, 83 N.C. 291 (1880).
Generally, the legislature may validate retrospectively any proceeding which might have been authorized in advance, even though its act may operate to divest a right of action existing in favor of an individual or subject him to a loss he would otherwise not have incurred. This general rule is subject, however, to some exceptions. Anderson v. Wilkins, 142 N.C. 154, 55 S.E. 272 (1906).
Although vested rights may not be affected by retroactive laws, contingent interests may be affected thereby; thus, where there is a voluntary trust estate with the limitation over upon a contingent determinable at some future time as to the persons who take thereunder, the power of revocation of the trust given by G.S. 39-6 is not objectionable as falling within the constitutional inhibition. Stanback v. Citizens Nat'l Bank, 197 N.C. 292, 148 S.E. 313 (1929).
Amendment made in 1991 to G.S. 122C-268.1(i) and 122C-276.1(c), which required respondent to bear the burden of proof to show that he was no longer dangerous or mentally ill and opened the hearing to the public, were procedural changes that did not violate substantive rights or protections though they could have disadvantaged respondent. Therefore, there was no violation of the Ex Post Facto Clause. In re Hayes, 111 N.C. App. 384, 432 S.E.2d 862, appeal dismissed, 335 N.C. 173, 436 S.E.2d 376 (1993).
Application Only to Tax Statutes Taxing Retrospectively. - This section applies only to tax statutes "taxing retrospectively sales, purchases, or other acts previously done." Chapter 1052 of Session Laws 1987 (Reg. Sess., 1988) is not a tax or revenue statute within the meaning of N.C. Const., Art. II, § 23. North Carolina E. Mun. Power v. Wake County, 100 N.C. App. 693, 398 S.E.2d 486 (1990), cert. denied, 329 N.C. 270, 407 S.E.2d 838 (1991).
Unemployment Compensation Taxes. - Taxes levied for the year 1936 under the Unemployment Compensation Act, G.S. 96-1 et seq., were void as violating this section. Unemployment Comp. Comm'n v. Wachovia Bank & Trust Co., 215 N.C. 491, 2 S.E.2d 592 (1939).
Tax Not Retrospective. - Contention that as to appellant G.S. 105-282.7 was a retrospective tax in violation of this section was without merit, where the statute was ratified in 1981 and did not become effective until January 1, 1982, and where appellant was not taxed under it for any period prior to its enactment. In re Champion Int'l Corp., 74 N.C. App. 639, 329 S.E.2d 691, cert. denied, 314 N.C. 540, 335 S.E.2d 15 (1985).
Midyear tax rate increase implemented by 2001 N.C. Sess. Laws 424, as codified in G.S. 105-134.2(a), was not levied until the conclusion of the taxable year; thus, the tax operated prospectively from the date of enactment and did not violate N.C. Const. Art. I, § 16. Coley v. State, 360 N.C. 493, 631 S.E.2d 121 (2006).
Validation of proceedings for improvement of streets and sidewalks which were begun and which have been concluded without an initial petition is proper and such act cannot be successfully attacked because it is retroactive or retrospective. Holton v. Town of Mocksville, 189 N.C. 144, 126 S.E. 326 (1925); Unemployment Comp. Comm'n v. Wachovia Bank & Trust Co., 215 N.C. 491, 2 S.E.2d 592 (1939).
As to prosecution for wilful failure to support illegitimate child born after the passage of the statute although the child was begotten before the effective date of the statute, see State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934).
Use of Adjudication of Juvenile Delinquency Permitted. - Defendant's contention that use of an adjudication of juvenile delinquency as an aggravating factor in sentencing an adult defendant violates the ex post facto provisions of our state and federal constitutions was unfounded. State v. Taylor, 128 N.C. App. 394, 496 S.E.2d 811 (1998), cert. denied, 348 N.C. 76, 505 S.E.2d 884 (1998), appeal dismissed, - N.C. - , 505 S.E.2d 884 (1998), aff'd, 349 N.C. 219, 504 S.E.2d 785 (1998).
Allowing the State to submit defendant's adjudication of delinquency as an aggravating circumstance at sentencing in his capital murder trial did not violate the prohibition against ex post facto laws; the enhanced sentence was not to be viewed as either a new jeopardy or additional penalty for the earlier crime since it was a stiffened penalty for the latest crime, which was considered to be an aggravated offense because a repetitive one. State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002).
Conviction of Murder While Committing Felonious Child Abuse with the Use of a Deadly Weapon, Hands - The court rejected the defendant's ex post facto objections and upheld the defendant's conviction, under G.S. 14-17, of murder while committing felonious child abuse, in violation of G.S. 14-318.4, with the use of a deadly weapon, her hands, although this theory had not, at the time of the victim's death, been used to support a first degree murder conviction resulting from the use of the hands as deadly weapons. State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000).
Violent Habitual Felony Offender Statute - G.S. 14-7.7 was not an ex post facto law; defendant's violent habitual felon status would only enhance his punishment for the second degree murder conviction in the instant case, and not his punishment for the underlying voluntary manslaughter felony, and although the violent habitual felon statute was not enacted until 1994, perpetrators were on notice between 1967 and 1994, pursuant to a habitual felon statute, that certain crimes could be used to enhance punishment for later crimes. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655 (2003).
Aggravated Sentence for Second Degree Murder. - Defendant's aggravated sentence for second degree murder did not violated the ex post facto clauses in N.C. Const., Art. 1, § 16 and U.S. Const., Art. 1, § 10 because the trial court had the authority to use a special verdict for the jury to determine aggravating factors at the time of defendant's trial. State v. Borges, - N.C. App. - , 644 S.E.2d 250 (2007).
Sex Offender Registration not Ex Post Facto Law. - G.S. 14-208.11 is not an impermissible ex post facto law. State v. White, 162 N.C. App. 183, 590 S.E.2d 448 (2004).
Town Ordinance Did Not Violate Ex Post Facto Clause. - Woodfin, N.C. Ordinances § 130.03, which prohibited registered sex offenders from knowingly entering any public park owned and operated by a town, did not violate the Ex Post Facto Clause since: (1) the town meeting minutes revealed a non-punitive intention to maintain the parks for the enjoyment and safety of the people of the town; (2) a sex offender's claim that the ordinance banished the offender from public spaces was rejected; (3) the ordinance was not deemed punitive merely because it was not narrowly tailored since restrictions on a person's activities could be imposed without being punitive; and (4) the ordinance did not subject registered sex offenders to affirmative disability or restraint since they could still travel freely and attend to their daily functions. Standley v. Town of Woodfin, - N.C. App. - , 650 S.E.2d 618 (2007).
Amendments to Statutes Criminalizing Possession of Guns by Ex-Felons. - Application of G.S. 14-415.1 to convict defendant, who was convicted of a felony in 1983 and had fully served his sentence on that conviction when he was found in possession of a handgun in 2001, did not violate ex post facto where the statute was amended in 1995 and applied to all occurrences after that date; ex post facto was also not violated since defendant's 1983 conviction, which was the predicate felony for his conviction under G.S. 14-415.1, was a felony in 1983, was a felony in 1995 when the statute was amended, and was a felony in 2001 when defendant was found in possession of a handgun; finally, the amendment to G.S. 14-415.1 in 1995 did not increase the punishment for defendant's prior 1983 felony, but created a new offense, so ex post facto was also not violated on that ground. State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739 (2005).
Application of G.S. 14-415.1, as amended in 2004, to a felon convicted more than 20 years before the amendment did not amount to an unconstitutional bill of attainder, as nothing indicated that the statute was enacted as a form of retroactive punishment, nor did the statute fall within the historical meaning of punishment; furthermore, plaintiff's status was not punishment imposed without judicial process. Britt v. State, - N.C. App. - , 649 S.E.2d 402 (2007).
Application of G.S. 14-415.1, as amended in 2004, to a felon who had been convicted more than 20 years before the amendment to G.S. 14-415.1, did not violate the ex post facto clause of the North Carolina Constitution because it was a non-punitive, regulatory scheme. Britt v. State, - N.C. App. - , 649 S.E.2d 402 (2007).
Amendments to Statutes Criminalizing Possession of Guns by Ex-Felons Are Not Bills of Attainder. - Application of G.S. 14-415.1 to convict defendant, who was convicted of a felony in 1983 and had fully served his sentence on that conviction when he was found in possession of a handgun in 2001, did not violate prohibitions against bills of attainder, or against bills of pain and penalties, since the statute's prohibition of possession of handguns by convicted felons outside their homes or businesses was not enacted as a retroactive punishment, was not historically regarded as punishment, and was not imposed without judicial process; defendant had a trial before being convicted under the statute; defendant was not punished for belonging to a designated class of people, but was convicted for violating a statute that was validly imposed on the group to which he belonged, so there was no violation of the bill of attainder provisions in U.S. Const., Art. I, § 10 and N.C. Const., Art. I, § 16. State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739 (2005).
Applied in In re Stedman, 305 N.C. 92, 286 S.E.2d 527 (1982); Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634 (1982); Harter v. Vernon, 139 N.C. App. 85, 532 S.E.2d 836 (2000), cert. denied and appeal dismissed, 353 N.C. 263, 546 S.E.2d 97 (2000), cert denied, 532 U.S. 1022, 121 S. Ct. 1962, 149 L. Ed. 2d 757 (2001).
Cited in State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977).