115.Calendaring and Docketing Duties
- North Carolina prosecutors have significant authority to control the superior court calendar, but still must act within statutory limits.
G.S. 7A-49.4(a) requires criminal cases in superior court to be calendared by the district attorney at administrative settings under a plan developed by the district attorney in consultation with the superior court judges residing in the district and after opportunity for comment by members of the local bar. At a minimum, the local plan must comply with the provisions of G.S. 7A-49.4. It also may contain additional calendaring rules if not inconsistent with those provisions. For example, G.S. 7A-49.4 does not require that a plan include the calendaring of misdemeanors for trial de novo, although a plan could do so if appropriate.
Under G.S. 7A-61, the district attorney also has the legal responsibility to prepare the criminal docket in district court, but in practice it is usually computer-generated by the clerk’s office.
G.S. 7A-49.4(b) requires that an administrative setting must be calendared for each felony, pursuant to the following guidelines:
- Within 60 days of an indictment or service of notice of an indictment, if service is required by law; or
- At the next regularly-scheduled session of superior court, if that session is later than 60 days from indictment or service of an indictment.
At the administrative setting:
- The court must determine the status of the defendant’s representation by counsel:
- After hearing from the parties, the court must set deadlines for the delivery of discovery, arraignment if necessary, and filing of motions;
- If the prosecutor has made a decision concerning a plea arrangement, the prosecutor must inform the defendant whether a plea arrangement will be offered and its terms; the court may conduct a plea conference if supported by the interests of justice;
- The court may hear pending pretrial motions, set such motions for hearing on a date certain, or defer ruling on motions until the trial of the case; and
- The court may schedule more than one administrative setting if requested by the parties or if it is necessary to promote the fair administration of justice.
After the administrative setting:
If the parties have not otherwise agreed on at trial date, the prosecutor must announce a proposed trial date at the conclusion of the final administrative setting. The court must set that date as the tentative trial date unless, after providing the parties an opportunity to be heard, the court determines that the interests of justice require the setting of a different date. In that event, the prosecutor must set another tentative trial date during the final administrative hearing. The trial may occur no sooner than 30 days after the final administrative setting, except by agreement of the state and the defendant.
Definite Trial Date
G.S. 7A-49.4(c) provides that when a case has not otherwise been scheduled for trial within 120 days of indictment or service of notice of indictment (if service is required by law), then on the defendant’s motion, the senior superior court judge (or a superior court judge designated by the senior superior court judge) may hold a hearing to establish a trial date for the defendant.
Venue for Administrative Settings
Under G.S. 7A-49.4(d), venue for an administrative setting may be in any county within the district when necessary to comply with the case docketing plan; the defendant is only required to be present for administrative settings held in the county where the case originated.
Setting and Publishing Trial Calendar
G.S. 7A-49.4(e) provides that the district attorney must publish the trial calendar not less than 10 working days before cases are calendared for trial. Since G.S. 7A-49.4(e) applies to all cases pending in superior court, it also applies to misdemeanors appealed for trial de novo. The trial calendar must schedule the cases in the order in which the district attorney anticipates they will be called for trial. G.S. 7A-49.4(e); see State v. Jones, 265 N.C. App. 293 (2019) (state failed to comply with statute where the trial calendar listed cases in alphabetical order, not trial order, and included more cases than could realistically be tried -- court agreed with defendant that a subsequently published "Trial Order" document was the only one that complied with G.S. 7A-49(e), and that document was published less than 10 days before the trial date in violation of the statute, but found that defendant failed to show any prejudice from the late notice).
G.S. 7A-49.4(e) also states that the district attorney is not required to list cases that he or she “does not reasonably expect to be called for trial," which presumably means that cases administratively set for a particular date do need to be listed on the trial calendar if other scheduled cases would prevent those cases from being tried anyway — but cases set under G.S. 7A-49.4(c) (“Definite Trial Date”) may need to be included on the calendar regardless.
Order of Trial
G.S. 7A-49.4(f) provides that the prosecutor, after calling the calendar and determining the cases for pleas and other disposition, must announce to the court the order in which the prosecutor intends to call for trial the remaining cases on the calendar. Since G.S. 7A-49.4(f) applies to all cases pending in superior court, this also applies to misdemeanors appealed for trial de novo. Deviations from the announced order require approval by the presiding judge if the defendant whose case is called for trial objects; but the defendant may not object if all the cases scheduled to be heard before the defendant’s case have been disposed of or delayed with the approval of the presiding judge or by the consent of the state and the defendant.
A case which is listed on the trial calendar may only be continued by: (i) the consent of the state and the defendant, or (ii) order of the presiding judge or resident superior court judge for good cause shown. The prosecutor, after consultation with the parties, must schedule a new trial date for cases not reached during the session of court.
Relevant Case Law
The former case docketing statute, G.S. 7A-49.3, was repealed and replaced effective January 1, 2000, with G.S. 7A-49.4, summarized above. Nevertheless, a number of cases decided under the former statute may still be relevant for responding to defense motions and arguments on common calendaring issues:
- Constitutionality of statutes granting prosecutors authority to set calendar.
See Simeon v. Hardin, 339 N.C. 358 (1994) (statutes authorizing district attorney’s calendaring authority are not facially unconstitutional).
- Prosecutor has authority to modify/add cases on calendar.
See State v. Monk, 132 N.C. App. 248 (1999) (trial judge did not err in allowing state to add criminal charge to trial calendar that was related to other charges on trial calendar); State v. Thompson, 129 N.C. App. 13 (1998) (court noted that the trial judge had the authority to order the trial of calendared offenses with non-calendared offenses, when all the offenses were transactionally-related under G.S. 15A-926(a); court pointed to the language in G.S. 7A-49.3 that no case on the calendar may be called for trial before the day fixed by the calendar, except by consent or “by order of the court”; court ruled that the judge’s order did not prejudice the defendant—it did not affect the defendant’s trial strategy, and almost the same evidence was necessary to prove all the offenses); State v. Edwards, 70 N.C. App. 317 (1984) (prosecutor did not improperly add a case to the trial calendar after defendant was permitted to withdrew no contest pleas on date of sentencing—defendant failed to show prejudice).
- Defendant must show prejudice, not just a technical violation.
See State v. Miller, 42 N.C. App. 342 (1979) (although trial calendar listing defendant’s case was filed only six days before the beginning of the court session, defendant received ample notice and failed to show prejudice, since the case was not called for trial until one full week after calendar had been filed); State v. Moore, 65 N.C. App. 56 (1983) (although trial calendar listing defendant’s case was filed only five and one-half days before the beginning of the court session, defendant waived any objection to tardy publication by waiting until the second day of trial to move for a continuance).