State v. Cornell

• Decision Date: 03 March 1981
• Docket Number: No. 8024SC828,8024SC828
• Citation: 275 S.E.2d 857,51 N.C.App. 108
• Parties: STATE of North Carolina v. Roy Dale CORNELL.
• Court: North Carolina Court of Appeals

Page 857

275 S.E.2d 857

51 N.C.App. 108

STATE of North Carolina v. Roy Dale CORNELL.

No. 8024SC828.

Court of Appeals of North Carolina.

March 3, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Robert A. Bell, Boone, for defendant-appellant.

WHICHARD, Judge.

Defendant first contends the trial court erred "in denying (his) motion to dismiss for failure to provide a speedy trial." A defendant in a criminal case has the burden of proof in supporting a motion to dismiss for failure to comply with the time limits for commencement of trial imposed by G.S. 15A-701. G.S. 15A-703 (1978). The State, however, has "the burden of going forward with evidence in connection with excluding periods from computation of time" in determining whether the applicable time limitations have been complied with. Id.

The defendant here presented, at the hearing on his motion to dismiss for failure to comply with the Speedy Trial Act, evidence tending to show the following: He was indicted on 4 September 1979. On 8 January 1980 he filed pro se, a motion "for a speedy trial." His trial commenced 26 March 1980, considerably beyond the 120 day limit from the time of indictment imposed by G.S. 15A-701(a1)(1). ¹

The State offered evidence, stipulations, or argument in response tending to show the following: Defendant was indicted on 4 September 1979 in this and two other cases. Between defendant's indictment and the session at which he was tried, three criminal sessions of Superior Court were held in Watauga County. These sessions commenced on 17 December 1979, 7 January 1980 and 11 February 1980. Defendant's cases were calendared for the 17 December 1979 session, but defendant failed to appear. The trial of one of the other cases against defendant at the 7 January 1980 session resulted in a mistrial. One of the cases against defendant was calendared and tried at the 11 February 1980 term. The other two cases, including this one, were also calendared; but the trial court entered an order finding they could not be heard, and therefore continued them. After appropriate exclusions from computation were made, a period of 122 days had elapsed since indictment of defendant.

The trial court, after finding facts, concluded that Watauga is a county with a "limited number of court sessions" within the meaning of that phrase as used in G.S. 15A-702; and that, consequently, the State was not required to try defendant within 120 days. ² It further found that defendant's motion was "not a motion for a prompt trial within the meaning of G.S. 15A-702" and concluded that the defendant had never made a "demand for a prompt trial within the meaning of G.S. 15A-702 and that the Court had no obligation in the absence of such a demand to schedule his case for trial in any county other than Watauga County."

Defendant does not contend the court erred in finding that Watauga is a county with limited court sessions. On the contrary, his brief states: "In passing we note that Watauga County is one of those counties for whose purposes NCGS 15A-702 was designated." He appears to contend, however, that his 8 January 1980 motion was "a motion for prompt trial" pursuant to G.S. 15A-702. The ground for this contention is that in the motion he did request that he be brought to trial as soon as possible. G.S. 15A-702 provides that if the venue of a defendant's case is in a county where due to the limited number of court sessions "the applicable time limit specified by G.S. 15A-701 has not been met," the defendant may file a motion for prompt trial. The court may then order the case brought to trial within not less than 30 days, and defendant by filing the motion "accepts venue anywhere within the judicial district."

In State v. Rogers, 49 N.C.App. 337, 341, 271 S.E.2d 535, 538 (1980), we suggested "that trial courts hereafter in determining exclusionary periods under the Speedy Trial Act detail for the record findings of fact and conclusions of law ..." The findings of fact and conclusions of law here do not adequately detail the factual basis for the trial court's conclusion that the defendant "never made a demand for a prompt trial within the meaning of G.S. 15A-702." The evidence in the record nevertheless supports the conclusion.

Between defendant's 4 September 1979 indictment and the filing of his 8 January 1980 motion, a period of 126 days elapsed. Nothing else appearing, "the applicable time limit specified by G.S. 15A-701 ((120 days)) ha(d) not been met." Defendant had, however, voluntarily made himself unavailable for trial at the 17 December 1979 session. The next session of criminal court scheduled in Watauga County commenced 7 January 1980. The period between 17 December 1979 and 7 January 1980 was thus properly excluded as a "period of delay resulting from the absence or unavailability of the defendant." G.S. 15A-701(b)(3) (Supp.1979). With this exclusion, the requisite 120 days had not elapsed when defendant filed his 8 January 1980 motion. When the motion was filed, therefore, the applicable time limit specified by G.S. 15A-701 had not expired. Because a motion for prompt trial under G.S. 15A-702 is appropriate only when "the applicable time limit specified by G.S. 15A-701 has not been met," and because, as a result of the exclusion of the period of delay resulting from the "absence or unavailability of the defendant," the applicable time limit had been met here, the trial court correctly concluded that defendant's motion could not be treated as a motion for prompt trial under G.S. 15A-702. Defendant's assignment of error to the denial of his motion is thus overruled.

Defendant next contends the court erred in allowing verdicts which were inconsistent. The jury...