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State v. Edgardo Gandarilla Nunez

Erwin Byrd

Contract Amicus Brief Writer

Erwin Byrd started working with NCAJ in January 2020. Her legal career began with a seven-year stint at Legal Aid of North Carolina, where she was a staff attorney for its statewide project, Advocates for Children’s Services. There, she represented children in matters involving special education, access to a constitutionally adequate education, school discipline and Medicaid. Byrd taught school discipline law as an adjunct at North Carolina Central University School of Law and clerked from 2017-2019 for Justice Samuel J. Ervin IV at the Supreme Court of North Carolina.

She is an avid reader, loves writing and enjoys researching all areas of law (with the possible exception of taxation and trusts and estates law). At NCAJ, she is the contracted amicus consultant, who writes and assists in the drafting and filing of amicus briefs in North Carolina state and federal appellate courts. This year, she is the president of her children’s elementary school PTA, and has found that’s about all the extracurricular work she can sustain. Byrd is a graduate of the University of the South in Sewanee in Tennessee and the University of North Carolina School of Law. She, her husband and their two children live in Durham and can often be found at a soccer field or in a lake or river.

Case Link View Now
Opinion Filed November 04, 2022
Attorney for the Case Nicholas Woomer-Deters
Amicus Brief Writers Erwin Byrd Tom Maher
Court NC Supreme Court
Docket No. 255PA20

NCAJ filed amicus curiae briefs supporting the defendants in these two cases currently before the N.C. Supreme Court. The briefs argue that prosecutors’ decisions not to reinstate certain criminal cases to the district court docket must be subjected to judicial review. The defendants in these cases were initially charged with driving while impaired in Wake County. When each did not appear in court, prosecutors decided to dismiss the cases with leave, pursuant to N.C.G.S. § 15A-932. Both defendants’ drivers’ licenses were revoked by the DMV, pursuant to another N.C. statute concerning failure to appear, and both defendants were subsequently charged with driving while license revoked.

When each defendant appeared in Wake County District Court to be heard on all of the charges, prosecutors refused to reinstate the charges that had been dismissed with leave and told the defendants’ attorney that the charges would be reinstated only if each defendant pleaded guilty to his DMV and waived appeal to the Superior Court. Each defendant then filed a motion to have the charges reinstated, which the district court denied, on the basis that the court lacked authority to require the prosecutor to reinstate. Each defendant sought to appeal this denial by filing petitions seeking writ of certiorari to the Superior Court of Wake County, but the writs were denied and dismissed by that court without hearing.  Mr. Diaz-Tomas appealed the denial of his PWC to the North Carolina Court of Appeals, which held, in a divided decision, that “[e]ven assuming arguendo that the District Court’s denial of defendant’s motion to reinstate the charges was erroneous, the Superior Court was not obligated to grant certiorari to review it[.]” State v. Diaz-Tomas, 841 S.E.2d 355 (N.C. Ct. App. 2020).

In its brief as amicus curiae, NCAJ argued that the Court of Appeals opinion, which “will allow prosecutors to dismiss with leave and refuse to reinstate a charge unless the defendant gives up his right to a trial and pleads guilty with no avenue for relief from the courts, leaving him with the choice of accepting long-lasting collateral consequences or giving up his constitutional rights,” should be reversed. The NCAJ brief particularly pointed out the vast number of people in North Carolina – more than 100,000 – who have their cases dismissed with leave each year, the benign reasons that many people fail to appear in court, the various and often long-lasting difficulties that face people whose cases are dismissed with leave, and the disproportionate impact that these procedures have on people of color and people of low income.