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North Carolina v. Eliason9/18/1990
Defendant's sole argument on appeal is that the trial court erred in denying his pretrial motion to dismiss. In denying defendant's motion, the trial court made extensive findings of fact as
to defendant's arrest, confinement and release on secured bond; and concluded that defendant's motion should be denied.
We note initially that defendant has failed to properly except or assign error to any of the trial court's findings of fact. Therefore, these facts are presumed to be correct and are binding on appeal. State v. Ward, 66 N.C. App. 352, 311 S.E.2d 591 (1984). We limit our review to whether these facts support the trial court's conclusions. Id.
Defendant contends that the trial court erred in denying his motion to dismiss because the magistrate who determined the condition of his pretrial release failed to inquire into various considerations mandated by the North Carolina General Statutes and the local policy of the 22nd Judicial District before setting the $300.00 secured bond. We find no error.
In order to warrant dismissal of a charge under N.C. Gen. Stat. § 20-138.1(a)(2), a defendant must make a sufficient showing of a substantial statutory violation and of prejudice arising therefrom. State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). Knoll involved three DWI cases (State v. Knoll, State v. Warren, and State v. Hicks) which had been consolidated for review. In Knoll, the magistrate set defendant's bond without inquiring into any of the conditions which affect the setting of a bond. Defendant had to wait in jail for an hour before he was allowed to call his father, and his father was told that he would not be allowed to post his bond for six hours. In Warren, the defendant was not informed of his right to communicate with counsel and friends. Two individuals attempted to post his bond but were told that defendant would have to remain in jail until 6:00 a.m. before he could be bailed out. In Hicks, the defendant was not informed of his right to communicate with counsel and friends. The magistrate set his bond without inquiring into any of the conditions affecting the setting of a bond, and refused to allow defendant to post his own bond despite the fact that he had the funds to do so. The Court held that each of the defendants had made a sufficient showing of a substantial statutory violation to warrant dismissal.
Defendant in this case has not made such a sufficient showing. He was properly informed of his rights to communicate with counsel and friends and that he could be released upon posting the bond. There was no "hold" placed on his release. Defendant's sole contention is that the magistrate acted improperly in setting a secured
bond without inquiring into various "crucial considerations" mandated by statute and local policy.
The relevant statute is N.C. Gen. Stat. § 15A-534(c) (1989):
In determining which conditions of release to impose, the judicial official must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release.
The magist
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