136.3Speedy Trial Issues
- A prisoner in North Carolina who has a detainer lodged against him, or has other outstanding criminal charges, may request a timely resolution of his pending cases.
- If the prisoner’s request is properly made, the prosecutor must take steps to resolve the case within the time limits set by statute.
- Similar provisions apply to prisoners outside North Carolina, or in federal custody, under the Interstate Agreement on Detainers.
North Carolina Prisoner Requesting Trial Under G.S. 15A-711
G.S. 15A-711(c) provides that a North Carolina prisoner may make a written request for trial on other pending charges, which is filed with the clerk of court where those charges are pending. If the prisoner does so, the state is required to request production of the prisoner under G.S. 15A-711(a) within six months from the date that the prisoner’s request is filed with the clerk. If the state does not comply with this six-month time limitation, then the charges must be dismissed. G.S. 15A-711(a) authorizes the prosecutor to make a written request to the custodian of the institution where the prisoner is located to release the prisoner for a period of 60 days in order to try the prisoner. A prisoner’s failure to serve a copy of his or her written request on the prosecutor in the manner provided by Rule 5(b) of the North Carolina Rules of Civil Procedure bars the dismissal of charges. See G.S. 15A-711(c); State v. Pickens, 346 N.C. 628 (1997); State v. Hege, 78 N.C. App. 435 (1985).
G.S. 15A-711(c)only requires that the prosecutor request to have the prisoner produced for trial within six months of the prisoner’s request. It does not require dismissal of the case if the trial itself does not occur within that time period. See State v. Williamson, 212 N.C. App. 393 (2011) (noting that G.S. 15A-711 is not a speedy trial statute); State v. Doisey, 162 N.C. App. 447 (2004); State v. Turner, 34 N.C. App. 78 (1977) (state proceeded within six months limitation by requesting defendant from state prison; trial is not required within six months); State v. Dammons, 293 N.C. 263 (1977) (noting that the legislature “envisioned” that trial would happen within the designated time period, but statute only requires that the state proceed “not to trial but to request a defendant's temporary release”).
North Carolina Prisoner Requesting Trial under G.S. 15-10.2
G.S. 15-10.2 provides that a prisoner serving a sentence in the North Carolina prison system who has had a detainer lodged against him for another criminal charge pending in state court must be brought to trial within eight months after the prisoner has sent a request by registered mail to the district attorney asking for disposition of the charge. However, the statute also provides that a court may grant “any necessary and reasonable continuance” for good cause. G.S. 15-10.2(a); see State v. McKoy, 294 N.C. 134, 143-44 (1978) (the defendant was not entitled to relief when he did not send the district attorney a notice and request for trial by registered mail as required by the statute); State v. Dammons, 293 N.C. 263, 266 (1977) (the defendant was not entitled to relief when the defendant's pro se request for trial was not sent by registered mail; additionally, the defendant was tried within eight months of the request).
Interstate Agreement on Detainers; G.S. 15A-761
(For more information, see also the related entry on Extradition and Detainers.)
- Trial Within 180 Days
Article III(a) of the Interstate Agreement on Detainers (G.S. 15A-761) provides that an out-of-state prisoner against whom a detainer has been lodged must be tried within 180 days after the prisoner has caused to be delivered to the prosecutor and court: (i) written notice of the place of his or her imprisonment; and (ii) a request for a final disposition to be made of the criminal charge that is the subject of the detainer. See State v. Vaughn, 296 N.C. 167 (1978) (prisoner’s request was ineffectual because it failed to provide information required by law); State v. Schirmer, 104 N.C. App. 472 (1991) (similar ruling); see also State v. Prentice, 170 N.C. App. 593 (2005) (service of state order for arrest on federal inmate was not a formal lodging of detainer); State v. Ferdinando, 298 N.C. 737 (1979) (prisoner’s request for speedy trial before detainer was lodged against him was ineffectual to trigger law).
The beginning date for the 180-day period is when the prosecutor actually received the prisoner’s request, not when the prosecutor should have received the request. State v. Treece, 129 N.C. App. 93 (1998) (defendant mailed request on January 16, 1996 but the request was not delivered to the district attorney’s office until March 18, 1996; the latter date is the beginning of the 180-day period); State v. McQueen, 295 N.C. 96 (1978) (no evidence district attorney’s office received defendant’s request). Continuances may be granted that extend the time in which the state may prosecute the charge. State v. Capps, 61 N.C. App. 225 (1983). If a trial is not begun within the appropriate time period, the charge must be dismissed with prejudice (that is, the charge may not be tried again). If a prisoner is released from prison before the expiration of the 180-day period, the interstate agreement no longer provides a defendant with the right to a speedy trial. State v. Dunlap, 57 N.C. App. 175 (1982).
Note that this interstate agreement does not apply to a North Carolina prisoner who has criminal charges pending in North Carolina. State v. Dammons, 293 N.C. 263 (1977); State v. Parr, 65 N.C. App. 415 (1983) (interstate agreement only applies to those charges that are basis for issuance of detainer).
- Trial Within 120 Days
Article IV(c) of the Interstate Agreement on Detainers (G.S. 15A-761) provides that a prisoner in another state against whom a detainer has been lodged must be tried within 120 days of prisoner’s arrival in this state when the state had requested the prisoner for trial. Continuances may granted that extend the time in which the state may prosecute the charge. For cases upholding state’s continuances or excluding time from the 120-day time limitation because of a defendant’s continuances, see State v. Lyszaj, 314 N.C. 256 (1985); State v. Vaughn, 296 N.C. 167 (1978); State v. Capps, 61 N.C. App. 225 (1983); State v. Collins, 29 N.C. App. 478 (1976).
If a trial is not begun within the appropriate time period, the charge must be dismissed with prejudice (that is, the charge may not be tried again). If a trial is begun within 120 days and results in a mistrial, the state is not required to try the defendant again within the 120-day period. The state only is required to use due diligence in trying the defendant again. State v. Williams, 33 N.C. App. 344 (1977) (“where a criminal defendant is tried within the period prescribed by the Interstate Agreement on Detainers and such trial results in a mistrial, he is not subsequently entitled to have the charges dismissed even though the second trial occurs after the prescribed time limits, so long as the State uses due diligence in prosecuting the case”).
- Anti-shuttling Provision
The anti-shuttling provision in Article IV(e) of the Interstate Agreement on Detainers (G.S. 15A-761) directs that once an out-of-state (or federal) prisoner is brought to the state for trial, the state has a duty to finish trying his case before returning him to the original jurisdiction. Failure to do so will result in dismissal of the case with prejudice. See Alabama v. Bozeman, 533 U.S. 146 (2001) (federal inmate from Florida brought to Alabama for one day to conduct arraignment and appointment of counsel, then returned to Florida, and later brought back to Alabama to stand trial – Supreme Court affirmed dismissal of the case, rejecting state’s argument that it was only a "technical" violation); see also United States v. Peterson, 945 F.3d 144 (4th Cir. 2019) ("Ordinarily, a violation of the anti-shuttling provision visits strict consequences—a dismissal of the indictment with prejudice").