State v. Klopfer, 829
Decision Date | 14 January 1966 |
Docket Number | No. 829,829 |
Citation | 266 N.C. 349,145 S.E.2d 909 |
Court | North Carolina Supreme Court |
Parties | STATE, v. Peter KLOPFER. |
T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Releigh, for the State.
Wade H. Penny, Jr., Durham, for defendant appellant.
The appellant challenged the right of the solicitor, even with the approval of the judge, to enter a nolle prosequi with leave in the criminal prosecution pending against him in the Superior Court. Stated another way, he insists his objection takes away from the solicitor and the court the power and authority to enter the order. The reason assigned is that the procedure denies him his constitutional right of a speedy trial.
When a nolle prosequi is entered there can be no trial without a further move by the prosecution. The further move must have the sanction of the court. When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application. When a nolle prosequi with leave is entered, the consent of the court is implied in the order and the solicitor (without further order) may have the case restored for trial.
Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 39 L.R.A.,N.S., 1215; State v. Thornton, 35 N.C. 256. Without question a defendant has the right to a speedy trial, if there is to be a trial. However, we do not understand the defendant has the right to compel the State to prosecute him if the State's prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi. In this case one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another effort.
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...is precedent worthy to be followed presently. 1 This aspect of North Carolina's criminal procedure was explained in State v. Klopfer, 266 N.C. 349, 145 S.E.2d 909 (1966), and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 2d 1 (1967). From the docket entry in the instant ca......
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