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North Carolina v. Clark3/5/1985
Defendant contends the court erred in denying his motion to dismiss for violation of the Speedy Trial Act, G.S. 15A-701 et seq. The pertinent facts are as follows:
Defendant's first trial on this charge resulted in the declaration of a mistrial on 26 July 1983. The case was scheduled for retrial on 31 August 1983. That term was cancelled, however, due to a personal tragedy involving the judge scheduled to preside. The next term commenced on 3 October 1983. The case was not reached at that term or at the next, which commenced on 7 November 1983. It was ultimately tried at the next term thereafter, which commenced on 7 December 1983.
The law in effect at the time of the mistrial allowed the State 120 days in which to retry defendant. G.S. 15A-701(a1)(4) (1981 Cum. Supp.); State v. Jones, 70 N.C. App. 467, 320 S.E.2d 26 (1984). Defendant's contention that the State had only ninety days to retry him is incorrect. The retrial here commenced 134 days after the declaration of mistrial. The State thus had the burden of establishing that at least fourteen of those 134 days were excludable. Jones, 70 N.C. App. at 469, 320 S.E.2d at 27, citing State v. Edwards, 49 N.C. App. 426, 427, 271 S.E.2d 533, 534 (1980), appeal dismissed, 301 N.C. 724, 276 S.E.2d 289 (1981).
G.S. 15A-701(b)(8) provides that in counties not conclusively presumed to be unable to meet the requirements of the Speedy Trial Act due to the limited number of court sessions, "determination shall be made in each case whether the applicable time limit . . . cannot reasonably be met due to the limited number of court sessions scheduled . . . ." We find this provision applicable to the facts presented. It indicates a legislative intent that the State should not be prejudiced in Speedy Trial Act computations by the cancellation of a term of court due to extraordinary circumstances involving the judge scheduled to preside. We thus hold that the
trial court properly excluded the period between 31 August 1983, the date the cancelled term was to commence, and 3 October 1983, the date the next succeeding term commenced. With this exclusion, defendant was retried within the requisite 120 day period.
Defendant contends that even if his statutory right to a speedy trial was not violated, he was denied his right to a speedy trial under the Sixth Amendment to the United States Constitution. The factors to be assessed in determining whether a defendant has been deprived of the constitutional right to a speedy trial are: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192 (1972); see also State v. Hill, 287 N.C. 207, 211-13, 214 S.E.2d 67, 71 (1975).
The length of delay here, 134 days, standing alone, is not sufficient to be unreasonable or prejudicial. See State v. Hartman, 49 N.C. App. 83, 86, 270 S.E.2d 609, 612 (1980). The reason for the delay is not clear from the record. The defendant, however, has the burden of showing that the delay was due to the State's wilfulness or neglect. State v. Spencer, 281 N.C. 121, 124, 187 S.E.2d 779, 781 (1972); State v. Johnson, 275 N.C. 264, 269, 167 S.E.2d 274, 278 (1969). That burden has not been met. The record reveals no assertion by defendant of his r
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