If no legal cause is shown for such imprisonment or restraint, or for the continuance thereof, the court or judge shall discharge the party from the custody or restraint under which he is held. But if it appears on the return to the writ that the party is in custody by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, such party can be discharged only in one of the following cases:
(1) Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.
(2) Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged.
(3) Where the process is defective in some matter of substance required by law, rendering such process void.
(4) Where the process, though in proper form, has been issued in a case not allowed by law.
(5) Where the person, having the custody of the party under such process, is not the person empowered by law to detain him.
(6) Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law. (1868-9, c. 116, s. 20; Code, s. 1645; Rev., s. 1847; C.S., s. 2235.)
Notes of Decisions
Cited in
14
cases (
5 in the last 5 years), 1954–2024 · leading case:
State v. Daw (N.C. 2024).
State v. Daw (N.C. 2024).
· cites it 202× “See N.C.G.S. §§ 17-33 to -34 (2023). -9- STATE V.”
State v. Leach, 742 S.E.2d 608 (N.C. Ct. App. 2013).
· cites it 8× “” N.C. Gen. Stat. § 17-33 . On the other hand, the trial judge must “remand the party” to custody in the event that he or she is being held: *405 (1) By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive…”
Hoffman v. Edwards, 269 S.E.2d 311 (N.C. Ct. App. 1980).
· cites it 2× “— If no legal cause is shown for such imprisonment or restraint, or for the continuance thereof, the court or judge shall discharge the party from the custody or restraint under which he is held. But if it appears on the return to the writ that the party is in custody by virtue…”
Matter of Imprisonment of Stevens, 221 S.E.2d 839 (N.C. Ct. App. 1976).
· cites it 2× “17-4(2) and G.S. 17-33. Our Legislature, furthermore, has clarified the scope of a court’s habeas corpus jurisdiction to include those instances “[w]here, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party…”
State v. Daw (N.C. Ct. App. 2021).
· cites it 50× “Phillip Brandon Daw (“Petitioner”) alleges in his petition for habeas corpus that under N.C. Gen. Stat. § 17-33 (2), because of an “act, omission or event, which has taken place after[] [his imprisonment], [] [he] has become entitled to be discharged.”
State v. Daw (N.C. Ct. App. 2021).
· cites it 50× “Phillip Brandon Daw (“Petitioner”) alleges in his petition for habeas corpus that under N.C. Gen. Stat. § 17-33 (2), because of an “act, omission or event, which has taken place after[] [his imprisonment], [] [he] has become entitled to be discharged.”
Lovette v. North Carolina Dep't of Corr., 731 S.E.2d 206 (N.C. Ct. App. 2012).
· cites it 2× “” Based on these credits as well as days actually served, petitioners alleged that they had served their entire sentences and were entitled to be discharged from incarceration pursuant to N.C. Gen. Stat. § 17-33 (2) (2010) (allowing for summary proceedings pursuant to a writ of…”
Freeman v. Johnson, 373 S.E.2d 565 (N.C. Ct. App. 1988).
· cites it 2× “” N.C. Gen. Stat. § 17-33 (2) (1983). Petitioner contends that entering the M.”
In the Matter of Harris, 84 S.E.2d 808 (N.C. 1954).
“11-33 (2) provides that a person restrained of his liberty may be discharged on return of the writ of habeas corpus “Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be…”
Chavez v. McFadden (N.C. 2020).
· cites it 4× “N.C.G.S. § 17-33 (2019). In their brief before this Court, petitioners argue that the trial court had the ability to “inquire into the legality” of petitioners’ detention and “make [a] threshold factual determination” concerning the extent to which they were lawfully detained…”
Chavez v. McFadden (N.C. 2020).
· cites it 4× “N.C.G.S. § 17-33 (2019). In their brief before this Court, petitioners argue that the trial court had the ability to “inquire into the legality” of petitioners’ detention and “make [a] threshold factual determination” concerning the extent to which they were lawfully detained…”
State v. Chapman, 724 S.E.2d 540 (N.C. Ct. App. 2012).
· cites it 4× “” Defendant sought discharge pursuant to N.C. Gen. Stat. § 17-33 with respect to the release order for the murder charges against him and remand pursuant to N.”
— N.C. Gen. Stat. § 17-33(2) — 3 cases
State v. Daw (N.C. 2024).
“See N.C.G.S. §§ 17-33 to -34 (2023). -9- STATE V.”
State v. Daw (N.C. Ct. App. 2021).
“Phillip Brandon Daw (“Petitioner”) alleges in his petition for habeas corpus that under N.C. Gen. Stat. § 17-33 (2), because of an “act, omission or event, which has taken place after[] [his imprisonment], [] [he] has become entitled to be discharged.”
State v. Daw (N.C. Ct. App. 2021).
“Phillip Brandon Daw (“Petitioner”) alleges in his petition for habeas corpus that under N.C. Gen. Stat. § 17-33 (2), because of an “act, omission or event, which has taken place after[] [his imprisonment], [] [he] has become entitled to be discharged.”
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