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North Carolina v. Martin5/6/1980
Based upon approximately 65 exceptions noted in the record, defendant brings forward and argues 30 assignments of error. First, he contends that the trial court erred as a matter of law by refusing to grant him a continuance before proceeding to trial in the Superior Court. Although defendant concedes that the granting of a continuance is a matter within the discretion of the court, he argues that the court abused its discretion in this case for the reason that "new counsel . . . employed about 1 hour before the case was called for trial," and did not have adequate time to prepare the case.
Had counsel been afforded more time to prepare this case, the record on appeal might have been even more voluminous than its present 182 pages, 100 pages of which constitute evidence adduced primarily by defendant's counsel on direct and cross-examination. We disagree that the defendant was prejudiced in the trial of his case by Judge Lupton's refusal to allow a continuance.
To the contrary, the record establishes to our satisfaction that defense counsel more than ably represented his client in a relatively uncomplicated case which involved few witnesses and even fewer disputed facts, but which nevertheless required more than three days' court time. Defendant has failed to show that the court abused its discretion by denying his motion. This assignment of error is patently without merit.
Defendant's next five assignments of error relate to his trial in the Superior Court upon a "misdemeanor statement of charges." The record discloses that, when this case came on for trial de novo in Superior Court, Judge Lupton found that the citation upon which the defendant was tried and convicted in the District Court was insufficient for that it was not signed by a magistrate. He thereupon ordered that the district attorney prepare, and the defendant be tried upon, a "statement of charges" pursuant to G.S. § 15A-922(c). Upon defendant's motion to dismiss the "misdemeanor statement of charges" thereafter filed, the court found that the statement "makes no material change in the pleadings in that it charges the identical offense theretofore charged" in the insufficient citation. The judge denied defendant's motion and ruled that the State could proceed to trial on the statement as filed. Defendant excepted and argues on appeal that trial on the misdemeanor statement could only have been had in District Court.
We disagree. The provisions of Chapter 15A, specifically G.S. § 15A-922, pertinent to the resolution of this question, provide as follows:
(b) Statement of Charges.
(1) A statement of charges is a criminal pleading which charges a misdemeanor. . . .
(e) . . . If the defendant by appropriate motion objects to the sufficiency of a criminal summons, . . . at the time of or after arraignment in the district court or upon trial de novo in the superior court, and the judge rules that the pleading is insufficient, the prosecutor may file a statement of charges, but a statement of charges filed pursuant to this authorization may not change the nature of the offense. [Emphasis added.]
It is clear that the statement of charges filed in this case upon trial de novo in Superior Court fully complied with the procedure contemplated by the foregoing statutory provisions. Moreover, only when a proceeding is initiated in the Superior Court -- not when it arrives there by way of appeal, as here -- is the State required to proceed upon information or indictment. See G.S. §§ 15A-922(g), 15A-923. Defendant's assignments of error based on t
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