State v. Foland
State v. Foland
Opinion of the Court
In pleading guilty to the charge of trafficking in marijuana in violation of G.S. 90-95(h), each defendant reserved his right to appeal the denial of his motions to dismiss the charge on the grounds that his right to a speedy trial was violated and that the contraband received into evidence was the fruit of an unlawful search and seizure. The appeal of the unlawful search and seizure ruling has no merit and is overruled without discussion, as similar investigatory detentions have been upheld by the United States Supreme Court and our Supreme Court in many cases. See Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct. 1319 (1983); United States v. Cortez, 449 U.S. 411, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981); Adams v. Williams, 407 U.S. 143, 32 L.Ed.2d 612, 92 S.Ct. 1921 (1972); State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986).
But the appeal of the speedy trial denial is well taken. Though the Speedy Trial Act, G.S. 15A-701, et seq., was repealed by Chapter 688, 1989 Session Laws, it was in effect when defendants were indicted and convicted and they were entitled to its protection. In substance, the Act required that except for times justifiably excluded from consideration they be tried within 120 days after indictment. Their trial was some 345 days after indictment, as both defendants were indicted on 30 September 1987 and kept in jail because of their inability to make bail until their cases were disposed of on 8 September 1988. During the interval between indictment and trial, apart from continuances requested or agreed to because of discovery and other necessary reasons, twelve continuance orders were entered that the defendants claimed were entered without their knowledge. The validity of these orders, all of which according to the record were entered under somewhat the same circumstances, determines the appeals; if they are valid the times excluded by them for speedy trial purposes were proper and the trial was within the net 120 day period allowed, but if they are invalid the times excluded by them were not authorized, and defendants are entitled to have the charges dismissed.
The continuance orders entered as above described did not comply with the Speedy Trial Act and are invalid. The exclusion of times for continuances, the only exclusion pertinent to this appeal, was governed by the following provisions of G.S. 15A-701(b)(7):
Any period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding. A superior court judge must not grant a motion for continuance unless the motion is in writing*312 and he has made written findings as provided in this subdivision.
As the statute plainly provided a valid continuance order under the Act required a judicial determination of the factors stated therein and according to the record no such determination was made. A judicial determination requires, inter alia, an inquiry by the judge into the factual or legal issues raised, In the Matter of Crutchfield, 289 N.C. 597, 223 S.E.2d 822 (1975), signing blank continuance orders that are later filled in by a clerk without being specifically so instructed by the judge is not such a determination. Nor are the orders valid because grounds may have existed for entering some or even all of them; for according to the record grounds for the continuances were not found by a judge after inquiry into the issues involved, as the Act required. Under the circumstances we are obliged to vacate the judgments of conviction and remand the cases to the Superior Court for the entry of orders dismissing the indictments against both defendants.
Vacated and remanded.
Concurring Opinion
concurring.
While I do not agree that the defendants’ claim of wrongful search and seizure has no merit, I fully concur with the majority as to the speedy trial issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.