State v. Reekes

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297 S.E.2d 763 (1982)

STATE of North Carolina v. Felton Earl REEKES.

No. 8226SC445.

Court of Appeals of North Carolina.

December 7, 1982.

*765 Atty. Gen. Rufus L. Edmisten by Associate Atty. David E. Broome, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant.

WELLS, Judge.

The State contends that the Speedy Trial Act allows the State to take a voluntary dismissal with leave and to reinstitute the proceedings at whatever time it chooses, and that the trial court erred in charging against the State the days between 2 September and 14 December, when the State had notice of defendant's whereabouts but had not yet reinstituted proceedings. The statutes relied upon by the State are as follows:

§ 15A-701. Time limits and exclusions. .... (b) The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin: .... (11) A period of delay from time the prosecutor enters a dismissal with leave for the nonappearance of the defendant until the prosecutor reinstitutes the proceedings pursuant to G.S. 15A-932; .... § 15A-932. Dismissal with leave when defendant fails to appear and cannot be readily found. (a) When a defendant fails to appear at any criminal proceeding at which his attendance is required and the prosecutor believes that the defendant cannot be readily found, the prosecutor may enter a dismissal with leave for nonappearance under this section. .... (d) Upon apprehension of the defendant, or in the discretion of the prosecutor when he believes apprehension is imminent, the prosecutor may reinstitute the proceedings by filing written notice with the clerk.

Defendant contends that it was proper for the court to charge the disputed period against the State because it is implicit in the Speedy Trial Act that the State is required to reinstitute proceedings which have been dismissed with leave once the State has notice that the defendant has been arrested. We disagree. Defendant relies on G.S. 15A-701(b)(13) which provides:

(b) The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin: .... *766 (13) Any period of delay from the time criminal process is served on a defendant who has previously been called and failed until the time that the district attorney receives notice that the criminal process has been served; ....

Defendant argues that G.S. 15A-701(b)(11) and (13), when read together, create an ambiguity; that in the face of such ambiguity we must look to the manifest intent of the Speedy Trial Act; and that upon doing so, the correctness of the trial court's ruling becomes clear.

G.S. 15A-701(b)(13) has no application to the case before us. Once the prosecutor entered a dismissal with leave for nonappearance of the defendant pursuant to G.S. 15A-932, G.S. 15A-701(b)(11) controlled and the speedy trial clock did not resume running against the State until the proceedings were reinstituted against the defendant on 14 December 1981.

Defendant further contends that the State is required to reinstitute proceedings within a "reasonable" time and that for its failure to do so he is entitled to a dismissal with prejudice to the State under the Speedy Trial Act. Certainly, the State is required to reinstitute proceedings within some "reasonable" time, especially in a case such as the present one where the defendant is in custody, awaiting trial. But that "reasonable" time is not to be measured under the provisions of the Speedy Trial Act, and a defendant may not rely on the Act to assert legal rights which may arise elsewhere. The Speedy Trial Act creates new rights, supplemental to the speedy trial rights existing under the Sixth Amendment to the Constitution of the United States. G.S. 15A-704. It is clear from the provisions of G.S. 15A-701(b) that the legislature intended to limit the statutory speedy trial rights of defendants who fail to appear in court.

The order of the trial court must be reversed and this case must be remanded for further proceedings not inconsistent with this opinion.

Reversed and Remanded.

VAUGHN and WHICHARD, JJ., concur.