Is there “Speedy Trial” in North Carolina?

If your case is in state court in North Carolina, the answer is “not really”. It can easily take over two years from arrest to trial on felony cases and over six months on misdemeanor cases.

North Carolina had a Speedy Trial statute requiring trial within 120 days but repealed it in 1989 after the District Attorneys complained that they were unable to comply with the statute. All that exists today is the amorphous Constitutional right to a Speedy Trial under both the North Carolina and United States Constitutions. Those Constitutional provisions do not define a particular time period within which a case must be brought to trial.

I often have clients in state cases respond with disbelief when I explain the above to them. They often mistakenly rely on the statute which provides that an inmate held in state prison or in a county jail must be brought to trial on any case pending in another county within 90 days of making a demand.  That statute does not apply in the typical case where a defendant is facing charges in one county.

So, what is the Constitutional right to a Speedy Trial?  It has been developed over the years by appellate case decisions from the U.S. Supreme Court, the North Carolina Supreme Court, and North Carolina Court of Appeals. The doctrine that has developed is that a defendant should first “demand” a Speedy Trial by filing a Speedy Trial demand with the court and serving it on the D.A. This serves to begin the clock ticking on a later determination of whether the defendant received a Speedy Trial or not.

It is possible, but rare, to win a motion to dismiss for denial of Speedy Trial. The factors a court will consider on a defendant’s motion to dismiss for violation of his Speedy Trial rights are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his Speedy Trial right; and (4) prejudice to the defendant. The United States Supreme Court has held that post-accusation delay that approaches one year is “presumptively prejudicial” and that this presumption “intensifies over time.” North Carolina courts have previously found that delays of 16 months and 14 months in trials for second degree murder were sufficient to justify the trial court looking at the other three factors.

It is not uncommon in Mecklenburg County or other North Carolina counties for a defendant charged with a serious felony to spend more than two years in jail awaiting trial. Few criminal defense attorneys in North Carolina file Speedy Trial demands, but I have done so multiple times and have litigated motions to dismiss for Speedy Trial violations on several occasions. Although I have not yet obtained any dismissals by the court, I have successfully used the threat of winning motions to push the D.A. into earlier dismissals or reductions of weak cases they otherwise would have waited months or years to address.

On the other hand, if your case is in federal court in North Carolina, there are statutes long ago enacted by Congress that provide specific, enforceable time limits within which the government must bring a federal defendant to trial. The applicable federal statute provides as follows:  “In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” Federal courts in North Carolina strictly enforce the statutory right to Speedy Trial. However, any defense motions to continue the trial are not counted against the 70 days and federal defense attorneys often need more time to review voluminous discovery to prepare for trial.

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