GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 1320

Short Title:  Speedy Trial Changes.	(Public)
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Sponsors: Representative Hackney.
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Referred to:  Judiciary.
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April 12, 1989

A BILL TO BE ENTITLED
AN ACT TO AMEND THE SPEEDY TRIAL STATUTES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-701 through G.S. 15A-703 are repealed.
Sec. 2.  Article 35 of Chapter 15A of the General Statutes is amended by adding the following new sections to read:
"§ 15A-703.1.  Time limits.
(a)	It is the public policy of the State of North Carolina that criminal charges be resolved without undue delay.
(b)	Unless the time is extended by an order of a superior court judge as provided by subsection (d), the trial of the defendant charged with a criminal offense shall begin within 150 days after the following:
(1)	The date the defendant is arrested, is served with criminal process, waives an indictment, or is indicted, whichever occurs last;
(2)	The first regularly scheduled criminal session of superior court, for which a calendar has not been published at the time of notice of appeal, held after the defendant has given notice of appeal in a misdemeanor case for trial de novo in the superior court;
(3)	When a charge is dismissed, other than under G.S. 15A-703.2 or upon a finding of no probable cause pursuant to G.S. 15A-612, and the defendant is afterwards charged with the same offense or an offense based on the same act or transactions connected together or constituting parts of a single scheme or plan, then from the date that the defendant was arrested, was served with criminal process, waived an indictment, or was indicted, whichever occurs last, for the original charge;
(4)	The date a mistrial is declared; or
(5)	The date the action occasioning the new trial becomes final when the defendant is to be tried again following an appeal or collateral attack.
(c)	The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:
(1)	The period of time from the time the district attorney enters a dismissal with leave for the nonappearance of the defendant until the district attorney reinstates the proceedings pursuant to G.S. 15A-932.
(2)	Any period of time during which the defendant is judicially declared to be mentally incapacitated or physically unable to stand trial, or any period of time during which the defendant is undergoing treatment or examination regarding his mental or physical capacity to stand trial.
(3)	Any period of time during which an interlocutory appeal is pending.
(4)	Any period of time during which the prosecution is deferred by the prosecutor pursuant to written agreement with the defendant with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.
(5)	Any period of time during which the defendant or an essential witness for the defendant or the State is absent or unavailable.  For the purpose of this subdivision, a defendant or an essential witness shall be considered
a.	Absent when his whereabouts are unknown and he is attempting to avoid apprehension or prosecution or when his whereabouts cannot be determined by due diligence; and
b.	Unavailable when his whereabouts are known but his presence for testifying at the trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
(d)	Upon motion of the State or the defendant and for good cause shown, a superior court judge assigned to hold court in the district or a resident superior court judge of the district may enter a written order specifying a later date within which the criminal trial shall begin.  For good cause shown, additional extension orders may be entered.
In considering whether to extend the time for beginning the trial, the judge shall consider whether the ends of justice will be served by the extension of time and whether the reasons for the extension outweigh the interests of the public and the defendant in an earlier trial. The factors which a judge shall consider in determining whether to extend the time include:
(1)	Whether the failure to extend the time would be likely to result in a miscarriage of justice;
(2)	Whether the delay is due to the limited number of court sessions scheduled for the county;
(3)	Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the time limits established; and
(4)	Whether the case involves physical or sexual child abuse when a victim or witness is under 16 years of age, and whether further delay would have an adverse impact on the well-being of the child.
	Good cause for extending the time shall include those instances when the defendant, a witness, or counsel of record has an obligation of service to the State, including service as a member of the General Assembly.
"§ 15A-703.2.  Sanctions.
(a)	If a defendant is not brought to trial within the time required by G.S. 15A-703.1, then upon motion of the defendant the court shall (i) enter an order dismissing the action with prejudice; (ii) enter an order dismissing the action without prejudice; or (iii) enter any other order as may be appropriate under the circumstances.  In determining the order to be entered, the court shall consider, among other matters, the seriousness of the offense, the facts and circumstances of the case which led to the failure to begin the trial within the time allowed, and the impact of reprosecution on the administration of justice.
(b)	A dismissal with prejudice shall bar further prosecution of the defendant for the same offense or an offense based on the same act or transaction, or on the same series of acts or transactions connected together or constituting parts of a single scheme or plan.  A dismissal without prejudice does not bar further prosecution.
(c)	Failure of the defendant to move for dismissal before trial or entry of a plea of guilty or no contest shall constitute a waiver of the right to dismissal under this section.
(d)	The sanctions authorized by this section do not apply to proceedings in the district court division of the General Court of Justice.
"§ 15A-703.3.  Expedited trial.
Upon motion of the defendant and for good cause shown, a judge may enter an order for an expedited trial of a pending criminal case.  In ruling on such a motion, the judge shall consider, among other matters, prejudice to the defendant if an expedited trial is not ordered and the ability of the State, with available resources, to expedite the trial."
Sec. 3.  G.S. 15A-133 reads as rewritten:
"§ 15A-133. Waiver of venue; motion for change of venue; indictment may be returned in other county.
(a)	A waiver of venue must be in writing and signed by the defendant and the prosecutor indicating the consent of all parties to the waiver. The waiver must specify what stages of the proceedings are affected by the waiver, and the county to which venue is changed. If the venue is to be laid in a county in another prosecutorial district, the consent in writing of the prosecutor in that district must be filed with the clerks of both counties.
	(c)	Motions for change of venue by the defendant are made under G.S. 15A-957. If venue is laid in a county in another prosecutorial district by order of the judge ruling on the motion, no consent of any prosecutor is required.
(d)	If venue is changed to a county in another prosecutorial district, whether upon waiver of venue or by order of a judge, the prosecutor of the prosecutorial district where the case originated must prosecute the case unless the prosecutor of the district to which venue has been changed consents to conduct the prosecution.
(e)	If venue is changed, whether upon waiver of venue or by order of a judge, the grand jury in the county to which venue has been transferred has the power to return an indictment in the case. If an indictment has already been returned before the change of venue, no new indictment is necessary and prosecution may be had in the new county under the original indictment."
Sec. 4.  G.S. 15A-1381 reads as rewritten:
"§ 15A-1381.  Disposition defined.
As used in this Article, the term ‘disposition' means any action which results in termination or indeterminate suspension of the prosecution of a criminal charge. A disposition may be any one of the following actions:
(1) 	A finding of no probable cause pursuant to G.S. 15A-511(c)(2);
(2)	An order of dismissal pursuant to G.S. 15A-604;
(3) 	A finding of no probable cause pursuant to G.S. 15A-612(a)(3);
(4)	A return of not a true bill pursuant to G.S. 15A-629;
(5)	Dismissal of a charge pursuant to G.S. 15A-703.2;
(6)	Dismissal pursuant to G.S. 15A-931 or 15A-932;
(7)	Dismissal pursuant to G.S. 15A-954, 15A-955 or 15A-959;
(8)	Finding of a defendant's incapacity to proceed pursuant to G.S. 15A-1002 or dismissal of charges pursuant to G.S. 15A-1008;
(9)	Entry of a plea of guilty or no contest pursuant to G.S. 15A-1011, without regard to the sentence imposed upon the plea, and even though prayer for judgment on the plea be continued;
(10)	Dismissal pursuant to G.S. 15A-1227;
(11)	Return of verdict pursuant to G.S. 15A-1237, without regard to the sentence imposed upon such verdict and even though prayer for judgment on such verdict be continued."
Sec. 5.  This act shall become effective October 1, 1989, and shall apply to offenses committed on or after that date.