Embezzlement charge in Wake County North Carolina § 14-90

February 10, 2012 by  
Filed under Criminal Law

Embezzlement charge in Wake County North Carolina § 14-90

The charge of Embezzlement § 14-90 is one of the more common financial crimes charged in Wake County, North Carolina. The charge of Embezzlement is usually an accusation by an employer that an employee fraudulently used or took money / cash or company property that the employee was entrusted with and used it in a manner that they were not allowed.

Embezzlement is a very serious crime in North Carolina. In most cases an Embezzlement charge in North Carolina will be punished as a Class H Felony. Under current felony sentencing structure in North Carolina a class H felony has a maximum punishment of 25 months active per charge. The felony sentencing in North Carolina is guided by the defendant’s prior record level and can vary greatly depending on which felony sentencing level the defendant falls under. In cases where the amount of funds (or value of property) is more than $100,000 the Felony Class goes up to a level C Felony. A Class C felony in North Carolina has a maximum punishment of 182 months active.

It is important to have a real conversation with your criminal defense lawyer about the best and worst possible outcome of each and every charge against you. If you have been charged with embezzlement or any financial crime you should contact a lawyer who deals with that type of law. There are many rights and options that need to be explained to you before you walk into a courtroom to face these charges. In some circumstances it may even be possible for your criminal defense lawyer to resolve the matter without you having to ever go to court. It is important to remember that there are many different situations or financial transactions (some accidental and some knowingly) that can lead charges of Embezzlement. No case is ever the same and no particular outcome can be guaranteed.

What is embezzlement?

Embezzlement is when a person fraudulently uses the property or money of another for a purpose other than that for which the person received it and while that person was entrusted with the safe keeping of that property or money.

How is embezzlement different than larceny? Embezzlement Vs. Larceny

Larceny is the taking of another person’s property or money with the intent to permanently deprive them of its use. A classic example is when a teenager goes into a store like Wal-Mart and takes a pair of jeans without paying for them. Embezzlement is similar to larceny, but it must involve someone taking (or giving away, misappropriating or misusing) property or money they were entrusted with. A classic example would be if an employee Wal-Mart such as a cashier took money out of her cash register for her own use. In this case the theft came from someone who was entrusted with the safe keeping of that property.

If I have been charged with Embezzlement can I just return the money and have the charges dropped?

The short answer is NO, the charges will not be dropped if you simply payback the money. But, there are countless reasons and variation of situations that can change this answer. No case is ever the exact same and needs to be treated and defended as such. In general the charges brought against you were brought by the State of North Carolina. If you have been charged, your case is considered (and referred to as) The State of North Carolina VS. Defendant… Not Wal-Mart VS. Defendant. So, while the employer victim may have some say in the outcome of the case, it is ultimately up to the Wake County District Attorney’s Office to prosecute or not prosecute the case.

What does the North Carolina General Statute say?

§ 14 90. Embezzlement of property received by virtue of office or employment.
(a) This section shall apply to any person:
(1) Exercising a public trust.
(2) Holding a public office.
(3) Who is a guardian, administrator, executor, trustee, or any receiver, or any other fiduciary, including, but not limited to, a settlement agent, as defined in G.S. 45A 3.
(4) Who is an officer or agent of a corporation, or any agent, consignee, clerk, bailee or servant, except persons under the age of 16 years, of any person.
(b) Any person who shall:
(1) Embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or
(2) Take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use,
any money, goods or other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever that (i) belongs to any other person or corporation, unincorporated association or organization or (ii) are closing funds as defined in G.S. 45A 3, which shall have come into his possession or under his care, shall be guilty of a felony.
(c) If the value of the property described in subsection (b) of this section is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the property is less than one hundred thousand dollars ($100,000), the person is guilty of a Class H felony.

What is Domestic Violence?

What is considered Domestic Violence? How is Domestic Violence defined in North Carolina?

The State of North Carolina defines Domestic Violence by statute in § 50B-1. Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense.

These acts are set by statute:

1. Attempting to cause bodily injury, or intentionally causing bodily injury
2. Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress.
3. Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.
a. § 14 27.2. First degree rape.
b. § 14 27.3. Second degree rape.
c. § 14 27.4. First degree sexual offense.
d. § 14 27.5. Second degree sexual offense.
e. § 14 27.6: Repealed by Session Laws 1994, Ex. Sess., c. 14, s. 71(3).
f. § 14 27.7. Intercourse and sexual offenses with certain victims; consent no defense.

What does a “personal relationship” mean in Domestic Violence cases?

1. Current or former spouses
2. Persons of opposite sex who live together or have at some time lived together
3. Related as parents and children, grandparents and grandchildren and other parental relationships.
4. A man and woman who have a child in common
5. Current or former household members
6. Persons of the opposite sex who are in a dating relationship or have been in a dating relationship. The dating relationship has to be romantic in nature and more than just friends or casual acquaintances.

The large majority of criminal domestic cases in Wake County involve assault(s) between a man and woman who have a sexual relationship and live together. These include Simple Assault, Assault on a Female, Assault by Strangulation and various Sexual Assaults. Domestic violence or DV cases in Wake County are taken very seriously by police, magistrates, defense attorneys and district attorneys because of the potentially dangerous nature of the situation.

Are gay or lesbian couples subject to Domestic Violence charges?

Yes, in the sense they can be charged with assaulting each other, but North Carolina does not place the “48 Hold” for domestic violence arrests on gay or lesbian couples. That means that they can be charged with the same crimes as heterosexual couples, such as assault and battery, but they will not be subject to the pre-trail release condition of bond only being issued by a district court judge. If someone in a gay or lesbian relationship is charge with a Domestic Violence related crime a Magistrate will set their bond or other pre-trial release conditions.

Do I need a lawyer to get a protective order? Should I get an attorney if I am a victim of Domestic Violence?

By statue you may file for a 50B Domestic Violence Protective Order without a lawyer. This is considered acting Pro Se or representing yourself. In all legal matters you always have the option of representing yourself, but it may be in your best interest to contact a lawyer who handles domestic violence cases. They will be able to provide vital insight and guide you through the process while protecting your rights. If you cannot afford to hire a private attorney for domestic civil matters you should contact Legal Aid of North Carolina or other non-profit groups like Interact. They provide extremely valuable services to individuals in domestic violence situations.

Contact info for free legal services in Wake County for Domestic Violence:

Interact of Wake County

www.interactofwake.org
1012 Oberlin Road Raleigh, NC 27605
(919) 828-7501

Legal Aid of North Carolina
www.legalaidnc.org
224 South Dawson Street Raleigh, NC 27601-1306
(919) 856-2180

Getting a Domestic Violence Protective Order

50B Getting a Domestic Violence Protective Order / Restraining Order in Wake County

A domestic violence protective order in Wake County is a very serious matter. Whether you are seeking a protective order or someone has taken out an order on you, it is advised that you seek legal representation. There are many constitutional rights and freedoms that are at risk upon issuance of this type of Protective Order.

Any person residing in North Carolina may seek relief under Chapter 50 of the North Carolina General Statues and obtain a protective order upon finding of certain facts. The domestic violence protective order in North Carolina is generally referred to as a “50B Order.” This is a civil action filed with the Wake County Clerk of Court alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.

A 50B Domestic violence protective order provides emergency relief for a person (a victim or domestic violence) who believes that there is a danger of serious and immediate injury to himself or herself or a minor.

Can a Magistrate issue a 50B Domestic Violence Protective Order / Restraining Order?

The North Carolina General Statutes clearly gives authority of Magistrates to issue these types of ex parte orders, but it is only if the Chief District Court Judge of that county authorizes it. Currently in Wake County Magistrates do not hold ex parte hearings to order Domestic Violence Protective Orders (DVPO).

In Wake County the Complaint and Motion is sworn (or affirmed) and subscribed to before a Deputy Clerk of Superior Court. Then the Ex Parte Domestic Violence Order is issued and signed by a District Court Judge upon hearing the facts in the Complaint. This limits the available times to apply for a DVPO since the courthouse is only in open on weekdays during court hours (excluding holidays), while there is always a Magistrate on duty and available 24 hours a day 365 days a year. For immediate help in a domestic violence situation call 911.

How do I get a Protective Order in Wake County? How do I get a Restraining Order in Wake County?

To get a 50B Domestic Violence Protective Order in Wake County you will need to visit the 11th floor of the Wake County Courthouse (This may be subject to change as new court facilities are being built). This is where you will find the Wake County Clerk of Court. You will have to file a Complaint and Motion for Domestic Violence Protective Order. The Clerk’s Office in Wake County has a stealer record of being extremely helpful and they will explain and walk you through the process. Contact the Wake County Clerk’s Office at (919) 792-4000.

If there is finding that an ex-parte protective order should be given, the individual against who protection is sought will be served by the Wake County Sheriff and a hearing will be scheduled within 10 days after prompt service (with some exception). The Defendant is served with what is called a Notice of Hearing. It is at this hearing that the court will determine whether the Order will be continued (up until one year) and whether emergency relief in protecting the plaintiff and the plaintiff’s children should be granted.

What protections do a domestic violence protective order / restraining order provide a victim of domestic violence? How does a 50B order affect child custody?

§ 50B 3. Relief is:

If the court, including magistrates (currently not in Wake County) as authorized under G.S. 50B 2(c1), finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence. A protective order may include any of the following types of relief:
(1) Direct a party to refrain from such acts.
(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household.
(3) Require a party to provide a spouse and his or her children suitable alternate housing.
(4) Award temporary custody of minor children and establish temporary visitation rights pursuant to G.S. 50B 2 if the order is granted ex parte, and pursuant to subsection (a1) of this section if the order is granted after notice or service of process.
(5) Order the eviction of a party from the residence or household and assistance to the victim in returning to it.
(6) Order either party to make payments for the support of a minor child as required by law.
(7) Order either party to make payments for the support of a spouse as required by law.
(8) Provide for possession of personal property of the parties, including the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
(9) Order a party to refrain from doing any or all of the following:
a. Threatening, abusing, or following the other party.
b. Harassing the other party, including by telephone, visiting the home or workplace, or other means.
b1. Cruelly treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
c. Otherwise interfering with the other party.
(10) Award attorney’s fees to either party.
(11) Prohibit a party from purchasing a firearm for a time fixed in the order.
(12) Order any party the court finds is responsible for acts of domestic violence to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission.
(13) Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
(a1) Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights as follows:
(1) In awarding custody or visitation rights, the court shall base its decision on the best interest of the minor child with particular consideration given to the safety of the minor child.
(2) For purposes of determining custody and visitation issues, the court shall consider:
a. Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
b. Whether the minor child was present during acts of domestic violence.
c. Whether a weapon was used or threatened to be used during any act of domestic violence.
d. Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.
e. Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.
f. Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
g. Whether there is a pattern of abuse against an aggrieved party or the minor child.
h. Whether a party has abused or endangered the minor child during visitation.
i. Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
j. Whether a party has improperly concealed or detained the minor child.
k. Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.
(3) If the court awards custody, the court shall also consider whether visitation is in the best interest of the minor child. If ordering visitation, the court shall provide for the safety and well being of the minor child and the safety of the aggrieved party. The court may consider any of the following:
a. Ordering an exchange of the minor child to occur in a protected setting or in the presence of an appropriate third party.
b. Ordering visitation supervised by an appropriate third party, or at a supervised visitation center or other approved agency.
c. Ordering the noncustodial parent to attend and complete, to the satisfaction of the court, an abuser treatment program as a condition of visitation.
d. Ordering either or both parents to abstain from possession or consumption of alcohol or controlled substances during the visitation or for 24 hours preceding an exchange of the minor child.
e. Ordering the noncustodial parent to pay the costs of supervised visitation.
f. Prohibiting overnight visitation.
g. Requiring a bond from the noncustodial parent for the return and safety of the minor child.
h. Ordering an investigation or appointment of a guardian ad litem or attorney for the minor child.
i. Imposing any other condition that is deemed necessary to provide for the safety and well being of the minor child and the safety of the aggrieved party.
If the court grants visitation, the order shall specify dates and times for the visitation to take place or other specific parameters or conditions that are appropriate. A person, supervised visitation center, or other agency may be approved to supervise visitation after appearing in court or filing an affidavit accepting that responsibility and acknowledging accountability to the court.
(4) A temporary custody order entered pursuant to this Chapter shall be without prejudice and shall be for a fixed period of time not to exceed one year. Nothing in this section shall be construed to affect the right of the parties to a de novo hearing under Chapter 50 of the General Statutes. Any subsequent custody order entered under Chapter 50 of the General Statutes supersedes a temporary order issued pursuant to this Chapter.
(b) Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year. The court may renew a protective order for a fixed period of time not to exceed two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one year period. The court may renew a protective order for good cause. The commission of an act as defined in G.S. 50B 1(a) by the defendant after entry of the current order is not required for an order to be renewed. Protective orders entered, including consent orders, shall not be mutual in nature except where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as aggressors, that neither party acted primarily in self defense, and that the right of each party to due process is preserved.
(c) A copy of any order entered and filed under this Article shall be issued to each party. In addition, a copy of the order shall be issued promptly to and retained by the police department of the city of the victim’s residence. If the victim does not reside in a city or resides in a city with no police department, copies shall be issued promptly to and retained by the sheriff, and the county police department, if any, of the county in which the victim resides. If the defendant is ordered to stay away from the child’s school, a copy of the order shall be delivered promptly by the sheriff to the principal or, in the principal’s absence, the assistant principal or the principal’s designee of each school named in the order.
(c1) When a protective order issued under this Chapter is filed with the Clerk of Superior Court, the clerk shall provide to the applicant an informational sheet developed by the Administrative Office of the Courts that includes:
(1) Domestic violence agencies and services.
(2) Sexual assault agencies and services.
(3) Victims’ compensation services.
(4) Legal aid services.
(5) Address confidentiality services.
(6) An explanation of the plaintiff’s right to apply for a permit under G.S. 14 415.15.

If you would like to obtain a Restraining Order or you need legal defense after being served with a restraining order then call The Gurney Law Firm at (919) 930-4027. Eric Gurney is a criminal lawyer for people in Wake County, Raleigh, Apex, Garner, Wake Forest, Cary and the Triangle.

Level of Punishment for a North Carolina DWI

Determining the Level of Punishment for a North Carolina DWI (After December 1st 2011)

If you have been charge with and subsequently been found guilty or plead guilty to a DWI charge in Wake County or another part of North Carolina the next issue you will face is the sentencing hearing. The sentencing hearing for a DWI conviction is required by statute § 20 179. A sentencing hearing will focus on the factors that existed when you were originally charged and some factors from your past history. The trial court is required to hear evidence and determine the existence of 3 types of factors for a DWI. They are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors.

As of December 1st of 2011 there are 6 levels of punishment for a DWI conviction. Listed in declining severity of punishment; they are Aggravated Level I, Level I, Level II, Level III, Level IV, and Level V. “Level 5” is the least punitive while “Aggravated Level 1,” which carries a Maximum jail sentence of 36 months, is the most punitive. The difference in punishment can change drastically depending on which DWI punishment level you come under.

How does the Court determine what Level of sentence you should receive?

The Court will weigh the 3 different types of factors and their finding of factors will place you, by statute, in a specific level for punishment. The 3 types are 1.) Grossly Aggravating Factors 2.) Aggravating Factors and 3.) Mitigating Factors. The Court shall consider evidence of Aggravating or Mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate. The State bears the burden of proving beyond a reasonable doubt that an aggravating factor exists, and the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. This means that the State (the Prosecutor or DA) has a higher standard at which to prove aggravating factors.

What are the Factors for DWI Punishment Levels for Sentencing in North Carolina?

Grossly Aggravating Factors

(1) A prior conviction for an offense involving impaired driving if:
a. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
b. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
c. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20 38.7.
Each prior conviction is a separate grossly aggravating factor.
(2) Driving by the defendant at the time of the offense while his driver’s license was revoked under G.S. 20 28, and the revocation was an impaired driving revocation under G.S. 20 28.2(a).
(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.
(4) Driving by the defendant while a child under the age of 16 years was in the vehicle at the time of the offense.
In imposing a Level One or Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) of § 20 179 in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f) of § 20 179.

Aggravating Factors

(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.
(2) Especially reckless or dangerous driving.
(3) Negligent driving that led to a reportable accident.
(4) Driving by the defendant while his driver’s license was revoked.
(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20 16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.
(6) Conviction under G.S. 20 141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.
(7) Conviction under G.S. 20 141 of speeding by the defendant by at least 30 miles per hour over the legal limit.
(8) Passing a stopped school bus in violation of G.S. 20 217.
(9) Any other factor that aggravates the seriousness of the offense.

Mitigating Factors

(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.
(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.
(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.
(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20 16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.
(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.
(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.
(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Department of Correction.
(7) Any other factor that mitigates the seriousness of the offense.

How does the court determine which Level is appropriate for my DWI conviction?

Determining which Level you are sentenced at depends on what and/or how many Factors the Court finds the existence of.

Aggravated Level 1 Punishment for a DWI- To sentence at this level the Court must find the existence of at least 3 Grossly Aggravating Factors.
Level 1 Punishment for a DWI - To sentence at this level the Court must find the existence of at least 2 Grossly Aggravating Factors or one of the Grossly Aggravating Factors listed in the General Statute § 20 179.
Level 2 Punishment for a DWI- To sentence at this level the Court must find the existence of 1 Grossly Aggravating Factor
Level 3 Punishment for a DWI - To sentence at this level the Court must find that the Aggravating Factors are greater than the Mitigating Factors
Level 4 Punishment for a DWI- To sentence at this level the Court must find that there are no Aggravating Factors or Mitigating Factors, or that the Aggravating Factors offset the Mitigating Factors.
Level 5 Punishment for a DWI- To sentence at this level the Court must find that the Mitigating Factors are greater than the Aggravating Factors

If you or someone you know has been charge with a DWI then you should contact a Wake County DWI lawyer and have them explain your rights and options. Eric Gurney is a former Wake County Magistrate with extensive experience in DWI procedure. If you need a Raleigh DWI lawyer then call Eric Gurney at (919) 930-4027 for aggressive DWI representation. The Gurney Law Firm handles DWI cases in Wake County, Durham County, Apex, Raleigh, Wake Forest, Cary and surrounding areas.